United States Court of Appeals 

For the First Circuit 

No. 19-1937 

CRISTIAN AGUASVIVAS, 

Petitioner, Appellee, 

v. 

MICHAEL POMPEO, U.S. Secretary of State; JEFFREY ROSEN, Acting 

U.S. Attorney General;* JOHN GIBBONS, U.S. Marshal for the 

District of Massachusetts; WING CHAU, U.S. Marshal for the 

District of Rhode Island; DANIEL MARTIN, Warden, Wyatt Detention 

Facility, 

Respondents, Appellants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. John J. McConnell, Jr., Chief U.S. District Judge] 

Before 

Lynch, Kayatta, and Barron, 

Circuit Judges. 

Amy Barsky, with whom Fick & Marx LLP was on brief, for 

appellee. 

Lee Gelernt, Cody Wofsy, Roberto Gonzalez, and Lynette 

Labinger on brief for the American Civil Liberties Union Foundation 

and the ACLU Foundation of Rhode Island, amici curiae. 

Christopher J. Smith, Associate Director, Office of 

International Affairs, Criminal Division, U.S. Department of 

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 

Acting Attorney General Jeffrey Rosen has been substituted for 

former Attorney General William P. Barr. 
Justice, with whom Brian A. Benczkowski, Assistant Attorney 

General, Criminal Division, Bruce C. Swartz, Deputy Assistant 

Attorney General, Criminal Division, Philip A. Mirrer-Singer, 

Trial Attorney, Office of International Affairs, Criminal 

Division, Andrew E. Lelling, United States Attorney, District of 

Massachusetts, Cynthia A. Young, Chief, Appeals Unit, District of 

Massachusetts, and Theodore B. Heinrich, Assistant United States 

Attorney, District of Massachusetts, were on brief, for 

appellants. 

January 7, 2021 
- 3 - 

KAYATTA, Circuit Judge. The Dominican Republic requests 

Cristian Starling Aguasvivas for extradition. After a federal 

magistrate judge certified Aguasvivas as eligible for extradition, 

Aguasvivas filed a habeas corpus petition in the District of Rhode 

Island arguing, among other things, that the Dominican Republic 

had failed to provide the required documentation in its extradition 

request, and that his extradition would violate the United Nations 

Convention Against Torture and Other Cruel, Inhuman, or Degrading 

Treatment or Punishment, Dec. 10, 1984, T.I.A.S. No. 94-1120.1 

("CAT"), given that the Board of Immigration Appeals ("BIA") had 

previously found that he was qualified for CAT relief. The 

district court agreed with Aguasvivas on both points, and the 

United States has now appealed. 

For the reasons explained below, we disagree with the 

district court that the United States is bound by the BIA's prior 

determination awarding Aguasvivas CAT relief. We nevertheless 

affirm the grant of habeas relief because we agree that the United 

States has failed to file the necessary documents to support an 

extradition request. 

I. 

On December 6, 2013, Aguasvivas was with his brother, 

Francis ("Frank"), when three Dominican drug officers, including 

Lorenzo Ubri, handcuffed and attempted to arrest Aguasvivas. Shots 

were fired while the officers were attempting to put Aguasvivas 
- 4 - 

into their car. According to the Dominican Republic as represented 

by the United States, "Frank distracted the agents by protesting, 

and Aguasvivas took advantage of this distraction to disarm Agent 

Ubri and shoot him three times at close range, including two 

bullets to the chest area." Ubri died; the two other officers 

were shot but not killed. 

In December 2013, a Dominican warrant issued for 

Aguasvivas's arrest. Eight months later, Aguasvivas fled to the 

United States. In immigration court, he sought asylum, withholding 

of removal, and CAT relief because of his fear of Dominican police. 

The immigration judge denied all relief, but in August 2016, the 

BIA reversed and granted withholding of removal under the CAT. 

The BIA found that it was "more likely than not that [Aguasvivas 

would] be tortured at the instigation of or with the consent or 

acquiescence of public official[s] in the Dominican Republic" if 

he returned.1 

Just over three years after the warrant issued, in 

February 2017, the Dominican Republic submitted an extradition 

request to the United States. Extradition is a "two-step procedure 

[that] divides responsibility . . . between a judicial officer and 

the Secretary of State." United States v. Kin-Hong, 110 F.3d 103, 

1 At the immigration hearing, four victims testified that 

the Dominican police tortured them for information on Aguasvivas's 

location. The police also killed Aguasvivas’s brother, Frank. 
- 5 - 

109 (1st Cir. 1997). The process is set out in the extradition 

statutes, 18 U.S.C. § 3181 et seq. First, upon a complaint from 

the Department of Justice in response to the foreign government's 

request, the magistrate judge issues a warrant for the arrest of 

the individual sought. See id. § 3184. The magistrate then 

conducts a hearing to consider whether the extradition request 

complies with the relevant treaty's documentation requirements,2

and whether "the evidence [is] sufficient to sustain the charge 

under the provisions of the proper treaty." See id. If those 

requirements are fulfilled, the magistrate certifies the 

extradition to the Secretary of State. Id. The Secretary then 

"determine[s] whether or not the [fugitive] should actually be 

extradited." Kin-Hong, 110 F.3d at 109 (citing 18 U.S.C. § 3186). 

"The Secretary has the authority to review the judicial officer's 

findings of fact and conclusions of law de novo, and to reverse 

2 The statute is not perfectly clear on the magistrate's 

obligation to review whether the documents submitted by the 

requesting party fulfill the obligations of the pertinent treaty. 

The language of the statute simply requires that the magistrate 

certify the extradition "[i]f . . . he deems the evidence 

sufficient to sustain the charge under the provisions of the 

property treaty or convention." 18 U.S.C. § 3184. We have 

previously read that portion of the statute to allow the magistrate 

(and subsequent habeas court) to consider whether a treaty's 

warrant requirement was fulfilled. See Kin-Hong, 110 F.3d at 113–

14; see also Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1448–49 (9th 

Cir. 1987); In re Assarsson, 635 F.2d 1237, 1240-43 (7th Cir. 

1980). The government does not argue that Aguasvivas's 

documentation claim in this case was not properly before the 

magistrate or the district court. 
- 6 - 

the judicial officer's certification . . . if [he] believes that 

it was made erroneously." Id. The Secretary can also "decline to 

surrender the relator on any number of discretionary grounds, 

including but not limited to, humanitarian and foreign policy 

considerations." Id. Finally, the Secretary may "attach 

conditions to the surrender of the relator" or "use diplomatic 

methods to obtain fair treatment for the relator" -- tools the 

judiciary does not have.3 Id. at 110. 

Upon receipt and review of the request from the Dominican 

Republic to extradite Aguasvivas, the United States filed an 

extradition complaint in the District of Massachusetts. A U.S. 

warrant issued, and Aguasvivas was arrested in September 2017 in 

Lawrence, Massachusetts. Following a hearing, a magistrate judge 

in the District of Massachusetts certified Aguasvivas's 

extradition in December 2018. The magistrate judge found that the 

extradition request was supported by the documentation required by 

the Dominican Republic-United States Extradition Treaty 

("Extradition Treaty"), Extradition Treaty, Dom. Rep.-U.S., Jan. 

12, 2015, T.I.A.S. No. 16-1215, and that there was probable cause 

3 For a critical analysis of how often such diplomatic 

assurances actually work to prevent torture, see Katherine R. 

Hawkins, The Promises of Torturers: Diplomatic Assurances and the 

Legality of "Rendition", 20 Geo. Immigr. L.J. 213 (2006). See 

also Comm. on Int'l Human Rights, Torture by Proxy: International 

and Domestic Law Applicable to 'Extraordinary Renditions', 60 Rec. 

Ass'n B. City N.Y. 13, 138–49 (2005). 
- 7 - 

to certify Aguasvivas for the extraditable offenses of murder, 

possession of a firearm, and robbery. 

Magistrates' certifications of extraditability are not 

appealable final orders under 28 U.S.C. § 1291. In re Mackin, 668 

F.2d 122, 127–28 (2d Cir. 1981). Extraditees therefore sometimes 

seek habeas relief to challenge their detention pursuant to the 

certifications. See id. at 128; see, e.g., In re Extradition of 

Manzi, 888 F.2d 204, 205 (1st Cir. 1989) (per curiam). To 

challenge his detention and avoid extradition, Aguasvivas filed 

just such a habeas petition in the District of Rhode Island. The 

district court granted the petition in September 2019. It first 

found that the magistrate judge had evidence sufficient to find 

probable cause. But it then found both that the extradition was 

barred by the BIA's CAT determination and that the extradition 

request did not satisfy the documentary requirements of the 

treaty.4 

With this appeal, the United States challenges both the 

ruling that the BIA's 2016 CAT determination precludes extradition 

and the ruling that the request of the Dominican Republic does not 

4 Because it found that release was required on Aguasvivas's 

CAT and documentation requirements claims, the district court did 

not reach all the claims in the habeas petition. Specifically, 

the habeas petition includes additional claims under procedural 

due process, substantive due process, and the Administrative 

Procedure Act. 
- 8 - 

satisfy the documentary requirements for extradition. We address 

each challenge in turn. 

II. 

A. 

We begin with the United States' challenge to the 

district court's ruling that the Convention Against Torture 

precludes Aguasvivas's extradition. At issue here, according to 

Aguasvivas, is the prospect that, if extradited to the Dominican 

Republic, he will be tortured. A claim of feared torture warrants 

attention in the extradition context because of the principle of 

non-refoulement in international law, reflected in Article 3 of 

the CAT, and enacted in the United States (as pertinent here) in 

the "FARR Act." See Foreign Affairs Reform and Restructuring Act 

of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761, 2681-

822; Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) ("[The FARR 

Act] implements Article 3 of the international Convention Against 

Torture, known as CAT."). That Act states in part that "[i]t shall 

be the policy of the United States not to expel, extradite, or 

otherwise effect the involuntary return of any person to a country 

in which there are substantial grounds for believing the person 

would be in danger of being subjected to torture." FARR Act 

§ 2242(a). It then "delegates the responsibility for 

'prescrib[ing] regulations to implement the obligations of the 

United States' under the CAT to 'heads of the appropriate 
- 9 - 

agencies.'" Saint Fort v. Ashcroft, 329 F.3d 191, 196 (1st Cir. 

2003) (quoting FARR Act § 2242(b)). As relevant to extradition, 

the Secretary of State, "[i]n order to implement" the United 

States' obligations under the CAT, "considers" whether an 

individual sought is "more likely than not" to be tortured before 

extraditing him. 22 C.F.R. § 95.2(b). 

Aguasvivas, though, does not want to wait to see what 

the Secretary decides. Instead, he launched a preemptive strike, 

asking the district court to rule now that the threat of torture 

must prevent his extradition, and thus that there is no reason to 

detain him. And the district court agreed, reasoning that, because 

the BIA previously found that removal of Aguasvivas by immigration 

authorities was barred by the CAT, the Secretary is estopped from 

ruling otherwise. In challenging that ruling, the United States 

advances two arguments that command our attention. First, the 

United States contends that the district court exceeded its own 

statutory jurisdiction by inquiring into the subject of whether 

the CAT precluded Aguasvivas's extradition. In support of this 

argument, the United States relies on the so-called "rule of noninquiry," Kin-Hong, 110 F.3d at 110;5 the Senate's declaration that 

5 See Trinidad y Garcia v. Thomas, 683 F.3d 952, 992 (9th 

Cir. 2012) (Berzon, J., concurring in part) ("The Supreme Court 

has never used the term 'rule of non-inquiry' . . . . Instead, 

the doctrine developed . . . as lower courts interpreted and 

expounded upon Supreme Court extradition precedents."). 
- 10 - 

Article 3 of the CAT is not self-executing, 136 Cong. Rec. 36198 

(1990); the FARR Act § 2242(d); and the REAL ID Act of 2005, Pub. 

L. No. 109-13, § 106(a)(1)(B), 119 Stat. 231, 310 (codified at 8 

U.S.C. § 1252(a)(4)). Second, the United States argues that, in 

any event, the CAT's application to this extradition request is 

not pre-ordained by the BIA ruling and is in fact an issue that is 

not yet ripe. Because we find the collateral estoppel issue ripe, 

and the argument against treating the BIA ruling as controlling to 

be plain and persuasive, we skip over the more difficult issues of 

whether we possess statutory jurisdiction. Cowels v. FBI, 936 

F.3d 62, 67 (1st Cir. 2020) ("Where a question of statutory 

jurisdiction is complex, but the merits of the appeal are 'easily 

resolved against the party invoking [] jurisdiction,' we can assume 

jurisdiction for purposes of deciding the appeal." (quoting In re 

Fin. Oversight & Mgmt. Bd. for P.R., 916 F.3d 98, 114 n.13 (1st 

Cir. 2019))).6

6 We have no reason to believe that any principle of noninquiry implicates federal court jurisdiction -- much less 

Article III jurisdiction. In Munaf v. Geren, although the Supreme 

Court dismissed the petitioners' torture claims based in part on 

principles of non-inquiry, 553 U.S. 674, 700-03 (2008), the Court 

held that the district court at least had jurisdiction over the 

claims as "habeas corpus petitions filed on behalf of American 

citizens challenging their detention in Iraq" by a multinational 

force, id. at 680, 685-88. Similarly, we have previously explained 

that the principle of non-inquiry cannot be "regarded as an 

absolute," Kin-Hong, 110 F.3d at 112, quoting the Second Circuit's 

statement that it could "imagine situations where the relator, 

upon extradition, would be subject to procedures or punishment so 

antipathetic to a federal court’s sense of decency as to require 
- 11 - 

1. 

A federal court possesses Article III jurisdiction to 

hear a case or controversy only if it alleges an injury in fact. 

See Susan B. Anthony List v. Driehaus (SBA List), 573 U.S. 149, 

157–58 (2014). An allegation of future injury satisfies that 

requirement only "if the threatened injury is 'certainly 

impending,' or there is a 'substantial risk' that the harm will 

occur." Id. at 158 (quoting Clapper v. Amnesty Int'l U.S.A., 568 

U.S. 398, 414 n.5 (2013)); see also Reddy v. Foster, 845 F.3d 493, 

500 (1st Cir. 2017). We have previously described our ripeness 

inquiry as having "roots in both the Article III case or 

controversy requirement and in prudential considerations," Reddy, 

845 F.3d at 500 (quoting Roman Cath. Bishop of Springfield v. City 

of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)), but we 

acknowledge that the Supreme Court has moved away from considering 

reexamination" of the principle, id. (quoting Gallina v. Fraser, 

278 F.2d 77, 79 (2d Cir. 1960)); see also Hilton v. Kerry, 754 

F.3d 79, 86–87 (1st Cir. 2014) (applying principles of non-inquiry 

and declining to apply the "theoretical Gallina exception" but 

providing no suggestion of a jurisdictional bar); In re Extradition 

of Howard, 996 F.2d 1320, 1329 (1st Cir. 1993) (defining noninquiry as "a doctrine which forbids judicial authorities from 

investigating the fairness of a requesting nation's justice system 

when considering whether to permit extradition to that nation" -- 

but not as jurisdictional). 

The government has not argued that Aguasvivas's CAT claim is 

outside the scope of habeas jurisdiction as defined under Fernandez 

v. Phillips, 268 U.S. 311, 312 (1925), and discussed further below, 

so we need not address that issue here. 
- 12 - 

prudential standing separate and apart from Article III standing, 

see Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 

U.S. 118, 125–26 (2014) (explaining that to take prudential 

considerations into account in determining standing would be "in 

some tension with our recent reaffirmation of the principle that 

'a federal court's obligation to hear and decide' cases within its 

jurisdiction 'is virtually unflagging'" (quoting Sprint Commc'ns., 

Inc. v. Jacobs, 571 U.S. 69, 77 (2013))). While it is unclear 

whether prudential ripeness concerns in particular may still be 

entertained, see SBA List, 573 U.S. at 167 ("[W]e need not resolve 

the continuing vitality of the prudential ripeness doctrine in 

this case . . . ."), Aguasvivas plainly alleges injury either way: 

He claims that extradition and, thus, the renewal of his detention 

for extradition are precluded by the fact that a prior ruling 

renders him nonextraditable under the CAT. See Dep't of Homeland 

Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1974 (2020) ("[E]xtradition 

cases . . . illustrate nothing more than the use of habeas to 

secure release from custody when not in compliance with the 

extradition statute and relevant treaties."). As a result, the 

government's argument that Aguasvivas's collateral estoppel claim 

is not ripe fails. 

2. 

We thus move to the merits of Aguasvivas's collateral 

estoppel claim, which is that the Secretary is estopped from 
- 13 - 

determining that Aguasvivas is not likely to face torture if he 

returns to the Dominican Republic, because the immigration courts 

have already determined that he is likely to face torture. Even 

putting to one side the questions of whether and when one agency 

of the federal government may collaterally bind another arm of the 

government,7 collateral estoppel cannot apply here because the 

issues are not the same. See NLRB v. Donna-Lee Sportswear Co., 

Inc., 836 F.2d 31, 34 (1st Cir. 1987) ("[T]he issue before the 

second forum must be the same as the one in the first 

forum . . . ."). The issue before the BIA was whether it was more 

likely than not that Aguasvivas would be tortured if he were 

removed by immigration authorities to the Dominican Republic in 

2016. See 8 C.F.R. § 208.16(c)(3). The issue to be addressed by 

the Secretary would be whether Aguasvivas is more likely than not 

to be tortured if he is extradited by the Secretary in 2020. See 

22 C.F.R. § 95.2(b). The relevant time frames at issue differ by 

several years. And the Secretary may also be able to use the 

normal tools of diplomacy to assure certain treatment for 

Aguasvivas upon surrender, as described above. See Kin-Hong, 110 

F.3d at 110. So whether Aguasvivas would be tortured if extradited 

by the Secretary in 2020 is a materially different question from 

7 The government argues that the parties are not identical, 

and Aguasvivas counters with several theories under which the 

parties may be at least in privity with each other. 
- 14 - 

whether he would have been tortured had he been removed by 

immigration officials without any such assurances in 2016. 

As one amicus brief8 has pointed out, in theory the 

Secretary could have sought the same diplomatic assurances from 

the Dominican Republic during the litigation of Aguasvivas's CAT 

claim in removal proceedings. See 8 C.F.R. § 1208.18(c) (setting 

forth a procedure for the Secretary of State to forward diplomatic 

assurances to the Attorney General to be relied upon in immigration 

proceedings). But we see no reason why the Secretary should be 

required to seek diplomatic assurances in removal proceedings or 

else forever hold his or her peace, especially given that removal 

proceedings might take place before the foreign government even 

requests extradition in the first place -- as happened here. 

Presumably, even potentially effective assurances in place at the 

time of removal proceedings would have to be re-sought or updated 

if there were an extradition process years later. The availability 

of diplomatic assurances in the removal process thus does not 

convince us that the Secretary must be bound by the results of 

that process.9 As a result, we see no reason to bind the government 

8 See Br. for the American Civil Liberties Union Foundation 

and ACLU Foundation of Rhode Island as Amicus Curiae Supporting 

Appellee and Affirmance at 21. 

9 Furthermore, the CAT relief Aguasvivas was awarded in his 

removal proceeding was not tantamount to permanent legal status. 

See Andrea Montavon-McKillip, CAT Among Pigeons: The Convention 

Against Torture, a Precarious Intersection Between International 

Human Rights Law and U.S. Immigration Law, 44 Ariz. L. Rev. 247, 
- 15 - 

preemptively by collateral estoppel in these extradition 

proceedings, and Aguasvivas's detention would be proper as a matter 

of extradition procedure -- at least as to the CAT issue. See 18 

U.S.C. § 3184 (requiring the extradition magistrate to "issue his 

warrant for the commitment of the person so charged to the proper 

jail" upon certifying extraditability). 

B. 

We turn now to Aguasvivas's claim that the documentary 

requirements of the Dominican Republic-United States Extradition 

Treaty have not been met, beginning with the question of whether 

we have habeas jurisdiction to review the magistrate's 

determination on the issue at all and then proceeding to the 

merits. 

1. 

In its briefs, the United States makes no claim that we 

lack jurisdiction to determine whether the documentary 

requirements of the treaty have been satisfied. Counsel for the 

United States explained that the United States has previously and 

260 (2002) (explaining that CAT relief does not "confer derivative 

status to the applicant's family," "provide any permanent 

immigration benefits," or automatically provide work 

authorization). In fact, a removal case can be reopened and CAT 

withholding terminated if there is a "change in circumstances 

relating to the . . . claim." 8 C.F.R. § 208.24(b)(1); see also 

Nasrallah, 140 S. Ct. at 1691 ("An order granting CAT relief means 

only that, notwithstanding [an] order of removal, the noncitizen 

may not be removed to the designated country of removal, at least 

until conditions change in that country."). 
- 16 - 

unsuccessfully contested jurisdiction over this issue in other 

cases and has intentionally abandoned that argument in this case. 

See Sacirbey v. Guccione, 589 F.3d 52, 64 n.16 (2d Cir. 2009) 

(reviewing circuit rulings). Nor do we see, sua sponte, any 

compelling reason not to exercise jurisdiction under the second 

prong of Fernandez v. Phillips, 268 U.S. 311 (1925). As the 

Supreme Court explained in that case: "[H]abeas corpus is 

available only to inquire whether the magistrate had jurisdiction, 

whether the offense charged is within the treaty and, by a somewhat 

liberal extension, whether there was any evidence warranting the 

finding that there was reasonable ground to believe the accused 

guilty." Id. at 312. "[W]hether the offense charged is within 

the treaty" requires an analysis of what the offense charged is 

-- or whether any offense has been charged at all (not to mention 

whether a formal charge is necessary). See Noeller v. Wojdylo, 

922 F.3d 797, 805 (7th Cir. 2019) (treating a challenge to the 

warrant at issue "as a challenge within the second category of 

permissible challenges under [Fernandez], whether the offense 

charged falls within the treaty, which we have understood as 

including whether the treaty's documentary requirements have been 

met"); Sacirbey, 589 F.3d at 63–69 (evaluating whether a formal 

charge was required and considering it the court's "duty to ensure 

that the applicable provisions of the treaty and the governing 

American statutes are complied with" under Fernandez (alteration 
- 17 - 

omitted) (quoting United States ex rel. Petrushansky v. Marasco, 

325 F.2d 562, 565 (2d Cir. 1963))); see also Trinidad y Garcia, 

683 F.3d at 1009 (Kozinski, J., dissenting in part) (characterizing 

the limited scope of review under Fernandez to include "whether 

the executive branch has the authority to detain the extraditee in 

the first place and whether the judicial branch has exercised 

proper jurisdiction over him"). 

Nor has the United States argued that this set of claims 

fails to allege an injury in fact. We agree that there is an 

"immedia[te] and real[]" controversy as to the probable cause and 

documentation issues that Aguasvivas raises, because he would not 

be subject to detention but for the magistrate judge's challenged 

certification that the documentation was proper and that probable 

cause existed. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 

127 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 

270, 273 (1941)). And even though these issues could be mooted if 

the Secretary decides that Aguasvivas should not be extradited, 

that possibility of eventual relief does not change the fact that 

the Secretary seeks to have Aguasvivas detained now. 

2. 

So we turn to the merits of Aguasvivas's argument -- 

accepted by the district court -- that the request for extradition 

does not comply with the basic documentary requirements of the 

treaty. That determination turned on an interpretation of the 
- 18 - 

Extradition Treaty's Article 7, titled "Extradition Procedures and 

Required Documents." Paragraph 2 of Article 7 requires, among 

other things, that "[a]ll extradition requests shall be supported 

by . . . information describing the facts of the offense or 

offenses [and] the text of the law or laws describing the offense 

or offenses for which extradition is requested." Extradition 

Treaty art. 7, § 2. Paragraph 3 then specifies that "[i]n addition 

to the requirements in paragraph 2 . . ., a request for extradition 

of a person who is sought for prosecution shall also be supported 

by:" 

(a) a copy of the warrant or order of 

arrest or detention issued by a judge or other 

competent authority; 

(b) a copy of the document setting forth 

the charges against the person sought; and 

(c) such information as would provide a 

reasonable basis to believe that the person 

sought committed the offense or offenses for 

which extradition is requested. 

Extradition Treaty art. 7, § 3.10

Aguasvivas contends that the request for his extradition 

failed to satisfy these documentary requirements for two reasons: 

(1) the warrant was not a warrant for his arrest or detention 

because it did not name him; and (2) the request did not include 

10 We refer only to the official English-language version of 

the Treaty. See Extradition Treaty art. 9 (requiring all 

extradition documents to be translated into the language of the 

"Requested Party"); cf. 48 U.S.C. § 864 (requiring all proceedings 

in the District Court of Puerto Rico to be conducted in English). 
- 19 - 

"the document setting forth the charges" against him. We address 

each argument in turn. 

a. 

The Dominican Republic submitted a translated copy of 

the warrant for the arrest of Aguasvivas. It reads in part: 

"[T]he judge . . . can ordain the arrest 

of a person when . . . his presence is 

necessary and there is evidence to reasonably 

maintain that he is the perpetrator or 

accomplice of an offense, that he can hide, 

leave or escape from the place[,]" and "when 

the person after being summoned to appear 

. . . does not do that, and his presence is 

necessary during the investigation or 

knowledge of an infringement. . . ." 

[This warrant o]rdains the arrest against 

CRISTIAN STARLING AGUASVIVAS aka MOMON and 

FRAN AGUASVIVAS aka EL COJO, according to the 

request filed by the licentiate FELIX SANCHEZ, 

Deputy Prosecutor of Judicial District of 

Peravia . . . . 

(quoting Dom. Rep. Code Crim. P. arts. 224, 225). 

Aguasvivas points out that the warrant botches his name 

-- entirely omitting his first name ("Cristian") and in its place 

using only a misspelling of his middle name ("Estarling" instead 

of "Starling") -- though the version translated to English 

inexplicably gets it right (and the difference is not a simple 

matter of translation). But extradition law discourages reliance 

on mere technicalities to impede the joint efforts of the treaty 

parties to extradite. See Fernandez, 268 U.S. at 312 ("Form is 

not to be insisted upon beyond the requirements of safety and 
- 20 - 

justice."); Bingham v. Bradley, 241 U.S. 511, 517 (1916) 

(disfavoring defenses "savor[ing] of technicality" in extradition 

proceedings). And there is no dispute -- even by Aguasvivas -- 

that he is the person described in the warrant, which is 

accompanied by an affidavit that also describes him and includes 

his picture.11 

The Supreme Court has previously found that an arrest 

warrant was invalid when it used an entirely incorrect first name 

("James" versus "Vandy M."). See West v. Cabell, 153 U.S. 78, 85 

(1894) ("[A] warrant for the arrest of a person charged with crime 

must truly name him, or describe him sufficiently to identify 

him."). Here, however, the reasonable inference from the warrant's 

misspelling is that the police thought Aguasvivas's middle name 

was his first name, and then spelled that name wrong. See Gero v. 

Henault, 740 F.2d 78, 83 (1st Cir. 1984) (upholding a warrant that 

listed the defendant's real name and alias, but in reverse order, 

noting that it was clear that the police knew that the defendant 

used both names). This is a far cry from an arrest warrant that 

mistakes the identity of the party sought. So although we view 

11 While Aguasvivas does not argue that he is not the person 

intended to be described in the warrant, he does contend that the 

use of the wrong name at one point led to the arrest of the wrong 

person, Richard Estarlin Aguasvivas. While Aguasvivas submitted 

a letter under Rule 28(j) suggesting that Dominican agents were 

seeking another person in the lead-up to his attempted arrest, the 

letter does not suggest that the warrant submitted in the 

extradition case does not identify him. 
- 21 - 

the mistranslation of the warrant as troubling, it was not error 

for the magistrate to rely on the warrant despite the misspelling 

of Aguasvivas's name in the original, Spanish version.12 

b. 

The bigger problem arises from the omission in the 

extradition request of any indictment or the like. To be more 

precise, such a document was not simply omitted -- it does not 

exist at all, as the parties agree that the Dominican prosecutor 

has yet to seek an indictment (called an "acusación" in the 

Dominican Republic). Nor does any party dispute that the criminal 

code of the Dominican Republic provides for the initiation of an 

extradition request when a person against whom an indictment has 

been presented is in a foreign country. See Dominican Code of 

Criminal Procedure ("DCCP") Art. 161. Aguasvivas argues that 

Dominican law actually requires that an indictment precede seeking 

extradition from any country, but that contention is disputed, and 

we defer to that extent to the Dominican government's construction 

of its own law as not requiring any step or document that the 

12 Of course, the rule that "federal court proceedings must 

be conducted in English," United States v. Rivera-Rosario, 300 

F.3d 1, 5-6 (1st Cir. 2002); see also Extradition Treaty art. 9 

(requiring all extradition documents to be translated into the 

language of the "Requested Party"); cf. 48 U.S.C. § 864 (requiring 

all proceedings in the District Court of Puerto Rico to be 

conducted in English), cannot excuse the government's use of namealtering translations. We simply find that the errors in the 

Spanish-language warrant here were not sufficient to invalidate 

it. 
- 22 - 

treaty does not require. Cf. Grin v. Shine, 187 U.S. 181, 190-91 

(1902) (refusing to consider a challenge to the validity of a 

foreign arrest warrant). Similarly, while the Dominican 

prosecutor's affidavit accompanying the extradition request 

explains that a prosecutor in the Dominican Republic may in the 

course of an investigation obtain an arrest warrant before deciding 

whether or not to bring any charges,13 nothing in the affidavit 

states that a prosecutor cannot indict before executing an arrest 

warrant. The prosecutor's affidavit also suggests that charges 

may be lodged in the Dominican Republic by a criminal complaint 

made out by a victim. But the affidavit does not claim that any 

criminal complaint has yet been lodged against Aguasvivas. 

13 Under the heading "Criminal Procedure in the Dominican 

Republic," the prosecutor's affidavit reports that: 

If the accused has escaped, the 

prosecutor asks the judge for a warrant for 

his arrest. As soon as the suspect is 

arrested, the prosecutor in charge of 

prosecuting the case, will interview him in 

the presence of his defense counsel; if the 

accused can not afford a defense lawyer, the 

State will provide one. Within 48 hours, the 

accused is presented by the prosecutor to the 

investigating judge, in order that he decides 

on the measure of coercion that must be 

applied to the accused. 

The prosecutor decides whether or not to 

bring charges according to the merits of the 

evidence available. 
- 23 - 

For our purposes the salient point is that as best this 

record shows neither the United States nor the Dominican Republic 

disputes that Dominican law certainly allows for an indictment or 

a criminal complaint as a precursor to an extradition request. So 

here we have an application for extradition that includes no 

indictment or criminal complaint only because no complaint exists 

and apparently no indictment has even been sought. In short, this 

case concerns a request to extradite for arrest and questioning in 

anticipation of a possible, yet-to-be-determined prosecution. 

This all brings us back to the text of the treaty. See 

United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) ("In 

construing a treaty . . . we first look to its terms to determine 

its meaning."); Restatement (Fourth) of Foreign Relations Law 

§ 306 (Am. Law Inst. 2018) ("A treaty 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."). 

If the treaty's text is ambiguous and reasonably accommodates the 

United States' construction, we defer to that construction whether 

or not it is a construction we would adopt de novo. See Kin-Hong, 

110 F.3d at 110 ("[E]xtradition treaties, unlike criminal 

statutes, are to be construed liberally in favor of 

enforcement . . . ."); Factor v. Laubenheimer, 290 U.S. 276, 293–

94 (1933) ("[I]f a treaty fairly admits of two constructions, one 

restricting the rights which may be claimed under it, and the other 
- 24 - 

enlarging it, the more liberal construction is to be preferred."). 

Conversely, if the textual meaning is plain and cannot reasonably 

bear the government's construction, then we must reject that 

construction. Greci v. Birknes, 527 F.2d 956, 960 (1st Cir. 1976) 

(declining to accept the State Department's interpretation where 

the language of the treaty to the contrary was "plain"). 

The United States' textual argument focuses on the 

phrase "the document setting forth the charges." Most persons 

familiar with criminal procedure would read that phrase as 

referring to either an indictment, a criminal complaint, or in 

some circumstances in this country, an information. In this case, 

the United States does not argue that the Dominican extradition 

request includes any one of these three types of documents. 

Rather, the United States argues that the warrant can do "double 

duty," serving as both the warrant and as "the document setting 

forth the charges." As to why we should regard the warrant as 

"the document setting forth the charges," the United States offers 

a single argument: 

The Dominican arrest warrant . . . satisfies 

the plain terms of Article 7.3(b) of the 

Treaty. It describes the criminal acts that 

Aguasvivas is alleged to have committed and 

lists the Dominican statutes that Aguasvivas 

is alleged to have violated. It therefore 

qualifies as "the document setting forth the 

charges against the person sought." 

We see six textual problems with this argument. 
- 25 - 

First, and most importantly, were the United States 

correct, then the entirety of paragraph 3(b) (requiring "the 

document setting forth the charges") would be entirely 

superfluous. In every case, the warrant would perform the 

government's version of double duty. The government, after all, 

makes no argument that Dominican or United States warrants of 

arrest or detention would ever fail to do what the United States 

says is necessary to do double duty as the document setting forth 

the charges. In the United States, for example, arrest warrants 

must "describe the offense charged." Fed. R. Crim. P. 4(b)(1)(B); 

see also 1 Federal Practice and Procedure: Criminal §§ 51, 54 (4th 

ed. 2020) (describing requirements of form for warrants issued 

pursuant to Rules 4 and 9); 5 Am. Jur. 2d Arrest § 21 (2d ed. 2020) 

(collecting state and federal cases requiring that arrest warrants 

describe the offense charged). Indeed, one of the purposes served 

by an arrest warrant is to give notice of the alleged offense for 

which probable cause has been found. Jaben v. United States, 381 

U.S. 214, 218–19 (1965) ("Notice to a criminal defendant is usually 

achieved by service upon him of the summons or arrest warrant 

. . . ."). And the United States makes no claim that arrest 

warrants in the Dominican Republic differ in this regard.14 

14 Nor does the United States argue that "order[s] of arrest 

or detention" can both issue prior to indictment and fail to 

describe the offenses. 
- 26 - 

Certainly, the Dominican warrant in this case describes the 

offenses for which the issuing official has found sufficient cause. 

Our dissenting colleague posits that a warrant to search 

for and seize "a person to be arrested" under Federal Rule of 

Criminal Procedure 41(c)(4) need not contain such information, but 

points to no example of an arrest or detention pursuant to such a 

warrant (rather than a Rule 4 warrant). The United States itself 

makes no such argument (either in the district court or before 

us). And even were we to accept the possibility that a warrant 

silent as to the offense could authorize arrest or detention, the 

"missing" information required by the United States' "double duty" 

interpretation would always be supplied by the Paragraph 2 

required information.15 So, whichever way you look at it, either 

the warrant by itself or certainly the warrant and the paragraph 2 

information would in 100 percent of the cases supply everything 

that the United States claims is necessary, and thus do the 

requisite double duty, rendering Article 7.3(b) entirely 

superfluous. 

Second, this is a treaty between two countries that both 

customarily employ warrants to arrest and separate documents to 

15 Paragraph 2 requires "[i]n addition to" the documents 

required by Paragraph 3 "information describing the facts of the 

offense or offenses . . . [and] the text of the law or laws 

describing the offense or offenses for which extradition is 

requested." 
- 27 - 

charge. When two experienced anglers refer to their "casts," we 

don't envision them making movies. Similarly, when these two 

countries refer in separately set-off sub-paragraphs to the 

warrant and to "the document setting forth the charges," (emphasis 

added), we envision something more than a warrant procured by a 

prosecutor who has not yet decided to bring charges. 

Third, a warrant, unlike an indictment, fails to 

indicate that the subject is wanted for prosecution.16 Under this 

treaty, the difference matters. Article 1 of the Extradition 

Treaty states that it is intended to provide for extradition of 

people "sought by the Requesting Party from the Requested Party 

for prosecution" (emphasis added). Article 7.3 itself describes 

the required documentation as support for "a request for 

extradition of a person who is sought for prosecution." This plain 

language expressly describing the role played by "the document 

setting forth the charges" reinforces the notion that Article 7 of 

the Treaty does not call for the extradition of a person wanted 

for questioning regarding a possible but not yet charged 

prosecution. 

Fourth, we examine the text of this treaty against the 

backdrop of judicial interpretations of other treaties. Long 

16 The United States does not report that the Dominican 

Republic argues otherwise or that the rule of non-inquiry precludes 

us from drawing this conclusion. 
- 28 - 

before this treaty was concluded, two circuit courts had considered 

whether a treaty required presentation of an indictment or the 

like in support of an extradition request. See Emami v. U.S. Dist. 

Ct., 834 F.2d 1444, 1448–49 (9th Cir. 1987); In re Assarsson, 635 

F.2d 1237, 1240-43 (7th Cir. 1980). In rejecting the contention 

that the applicable treaty conditioned extradition on the filing 

of formal charges, each court pointed out that the treaty's list 

of required documents contained no reference to any formal document 

evidencing charges being brought. The lists included, instead, 

the warrant. Emami, 834 F.2d at 1448 n.3; Assarsson, 635 F.2d at 

1243. The Seventh Circuit reasoned that, "[i]f the parties had 

wished to include the additional requirement that a formal document 

called a charge be produced, they could have so provided." 

Assarsson, 635 F.2d at 1243. We readily agree with the holdings 

and the rationale in both Emami and Assarsson. So we could rule 

for the government in this case were the language of this treaty 

materially similar to the language of those treaties. 

The treaty in this case, though, adds to the list of 

required documents a requirement that was missing in those earlier 

treaties: "the document setting forth the charges." For that 

reason, our agreement with the holdings in Emami and Assarsson 

provides no succor for the United States in this case. Indeed, 

given that the State Department is presumably familiar with the 

various treaty forms that it has adopted and with circuit law 
- 29 - 

construing those forms, the contrast between this treaty and the 

treaties in those cases strongly suggests that the addition of 

§ 3(b) was intended to call for the production of more than just 

a warrant. 

This reasoning moves even closer to home when we consider 

the fifth textual problem with the government's argument, this 

Treaty's departure from the language in the pre-existing, 1909 

extradition treaty with the Dominican Republic. That treaty, like 

the treaties at issue in Assarsson and Emami, also had no 

requirement to include the document setting forth the charges. 

Extradition Convention art. XI, Dom. Rep.-U.S., June 19, 1909, 

36 Stat. 2468 ("If, however, the fugitive is merely charged with 

crime, a duly authenticated copy of the warrant of arrest in the 

country where the crime was committed, and of the depositions upon 

which such warrant may have been issued, shall be 

produced . . . ."). When, subsequent to Assarsson and Emami, the 

Dominican Republic and the United States added to the list of 

required documents "the document setting forth the charges," a 

strong inference arose supporting the conclusion that this treaty 

requires more than an arrest warrant describing a suspected but 

yet-to-be charged crime. 

Finally, this inference only grows stronger when we 

compare this treaty's supporting document requirements to those 

present in other recent treaties. After Assarsson and Emami and 
- 30 - 

prior to this treaty's conclusion, the State Department 

demonstrated that it knew how to make the production of a document 

other than an arrest warrant optional. The extradition treaty 

between the United States and Austria, for example, provides that 

"[a] request for extradition of a person who is sought for 

prosecution shall be supported by" "a copy of the warrant or order 

of arrest" and "a copy of the charging document, if any." 

Extradition Treaty, Austria-U.S. art. 10, § 3, Jan. 8, 1998, 

T.I.A.S. No. 12916 (emphasis added); see also Protocol Amending 

the Convention between the United States of America and Israel of 

December 10, 1962, Isr.-U.S., art. 6, July 6, 2005, T.I.A.S. 

No. 07-110 (amending Article X of the countries' extradition 

treaty to include the same language). This language plainly 

recognizes that there is a type of document in addition to the 

warrant that is known as a charging document. And that language 

also grants permission to proceed without that other document if 

it does not exist. The treaty before us preserves that recognition 

that there is some document that does more than a warrant does, 

but it eliminates the permission to proceed without such a 

document. This change would not have been made had the United 

States been willing to extradite to the Dominican Republic persons 

(including its citizens) based only on a warrant. 

As best we can tell, no other United States extradition 

treaty uses the same relevant language as does the treaty with the 
- 31 - 

Dominican Republic. The treaty that comes closest, the ChileUnited States Extradition Treaty, preexisted this treaty and 

requires a warrant and "a document setting forth the charges." 

See Extradition Treaty, Chile-U.S., art. 8, § 3(b), June 5, 2013, 

T.I.A.S. No. 16-1214. The next-closest agreements are those with 

Belize, Saint Kitts and Nevis, Saint Vincent and the Grenadines, 

Grenada, and Saint Lucia, all of which also preexist this treaty 

and none of which requires "the document setting forth the 

charges." See Extradition Treaty, Belize-U.S., art. 6, § 3(b), 

Mar. 30, 2000, T.I.A.S. No. 13,089; Extradition Treaty, St. Kitts 

& Nevis-U.S., art. 6, § 3(b), Sept. 18, 1996, T.I.A.S. No. 12,805; 

Extradition Treaty, St. Vincent-U.S., art. 6, § 3(b), Aug. 15, 

1996, T.I.A.S. No. 99-908; Extradition Treaty, Gren.-U.S., art. 6, 

§ 3(b), May 30, 1996, T.I.A.S. No. 99-914.1; Extradition Treaty, 

St. Lucia-U.S., art. 6, § 3(b), Apr. 18, 1996, T.I.A.S. No. 00-

202. The parties cite no precedent concerning those treaties. 

Whether the United States' "double duty" theory would work with 

those treaties without rendering an entire paragraph superfluous, 

we need not decide. Rather, the arguably pertinent point is that 

in this treaty alone "a document setting forth the charges" is 

changed to "the document setting forth the charges." 

We have also considered the arguments of our dissenting 

colleague, which rely heavily on cases construing the interstate 

extradition statute, or cases construing other treaties. We find 
- 32 - 

nothing in those cases inconsistent with our holding here. Neither 

the interstate extradition statute nor the treaties in those cases 

called for a warrant and "the document setting forth the charges." 

Instead, in one manner or another they simply required that the 

person sought for extradition have been "charged," which we agree 

in that context could be construed "in the broad and practical 

sense," Pierce v. Creecy, 210 U.S. 387, 402 (1908), as not 

requiring more than one would find always in an arrest warrant. 

In none of these cases was the court asked by the government to 

construe a requirement that "A and B be filed" as meaning that 

only "A be filed." 

Our dissenting colleague also speculates that "an order 

of detention" refers always and only to something that compels the 

detention of a person who has not been indicted. Hence, reasons 

our colleague, there could never be an extradition based on an 

order of detention if an indictment were required. The United 

States itself advances no such argument. Nor does it point to any 

basis for such an unsupported (and unasserted) assumption that 

orders of detention can never be accompanied by indictments. 

In sum, we find that the text of the treaty, even when 

viewed through a lens of liberal construction favoring 

extradition, will not accommodate the United States' 

interpretation. Most notably, that construction would render 

superfluous a relatively bespoke requirement added to this treaty, 
- 33 - 

the absence of which requirement in other preexisting treaties was 

twice noted as significant by circuit courts before this treaty 

was written. 

A final note on the charges: At oral argument, counsel 

for the United States acknowledged that because of the rule of 

specialty, any offense not listed in the document satisfying the 

requirement established in Article 7.3(b) cannot be certified for 

extradition. See United States v. Tse, 135 F.3d 200, 204 (1st 

Cir. 1998) ("The doctrine of specialty is grounded in international 

comity and generally requires that a requesting country not 

prosecute a defendant for offenses other than those for which 

extradition was granted."); United States v. Saccoccia, 58 F.3d 

754, 766 (1st Cir. 1995) ("The principle of specialty . . . 

generally requires that an extradited defendant be tried for the 

crimes on which extradition has been granted, and none other." 

(internal citations omitted)). Here, the arrest warrant does not 

list Article 379 of the Dominican Code, which criminalizes a form 

of robbery. Article 379 is included in the extradition request, 

however, and the magistrate certified it for extradition. 

Certification and Committal for Extradition at 3, In re Extradition 

of Cristian Starling Aguasvivas, No. 17-mj-04218 (D. Mass. Dec. 

11, 2018), ECF No. 78. The government avers that the difference 

between the offense listed in the extradition request and that 

listed in the arrest warrant (Article 309) amounts to no more than 
- 34 - 

a typo, and the magistrate judge agreed. But Article 309 is an 

entirely distinct offense under the Dominican Code, so it is 

difficult to simply assume that its presence in the arrest warrant 

was a typo. As a result, even if we found the documentation 

sufficient to certify on the other charges, we would vacate the 

certification of Article 379 specifically. 

C. 

Finally, Aguasvivas argues that there is not probable 

cause to believe he committed the crimes alleged by the Dominican 

Republic. We address this issue only because it is likely to arise 

again if the Dominican prosecutor intends at some point to file 

and supply "the document setting forth the charges." See, e.g., 

Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990) 

(addressing issues "raised by the parties which [were] likely to 

recur"). On habeas review of a magistrate's certification of 

extraditability, we look only to whether the magistrate's 

determination of probable cause was supported by "any evidence." 

Kin-Hong, 110 F.3d at 116; Fernandez, 268 U.S. at 312 (authorizing 

the habeas court to review "whether there was any evidence 

warranting the finding that there was reasonable ground to believe 

the accused guilty"). "This circuit has interpreted the 'any 

evidence' standard quite literally, conducting a fairly 

deferential review of the magistrate's findings." Kin-Hong, 110 
- 35 - 

F.3d at 116-17 (citing Koskotas v. Roche, 931 F.2d 169, 176 (1st 

Cir. 1991); Manzi, 888 F.2d at 205). 

Under that standard, the district court's analysis was 

largely correct: The magistrate certainly had at least some 

evidence to conclude that Aguasvivas might have been guilty of 

shooting at the agents who attempted to arrest him. Firstly, 

Dominican prosecutor Feliz Sanchez Arias reported that the two 

surviving officers identified a photograph of Aguasvivas as the 

shooter.17 And secondly, a video of the shooting on YouTube -- 

while it does not actually show Aguasvivas shooting anyone -- does 

not show that he could not have done so. A medical report states 

that the bullets entered Ubri in the front, while the video plainly 

17 The affidavit is not perfectly clear on the 

identification, given that it first identifies a photograph as the 

photograph of Cristian Aguasvivas and then states that the 

eyewitnesses were qualified to identify Aguasvivas because they 

saw him shoot Ubri but never explicitly that they identified the 

person in the photo as the shooter. However, the chain of logic 

seems to extend to that point: The agents saw the shooting, and 

believed Aguasvivas -- the man in the photograph -- committed it. 

Additionally, evidence at an extradition hearing "may consist 

of hearsay, even entirely of hearsay." Kin-Hong, 110 F.3d at 120 

(citing Collins v. Loisel, 259 U.S. 309, 317 (1922)). Aguasvivas 

argues that these statements are "not even hearsay" because "there 

is no declarant." It is true that the affidavit is not clear on 

whether the officers made the identification directly to Sanchez 

Arias or whether he learned of the identification through someone 

else. But the fact that the exact chain of knowledge is not 

identified does not change the fact that this is competent hearsay 

evidence admissible at an extradition hearing. 
- 36 - 

places Aguasvivas immediately in front (and within a foot or so) 

of Ubri when he was shot. 

Of course, there is also a considerable amount of 

conflicting evidence. The autopsy report seems to assume that 

someone other than Aguasvivas must have committed the shooting, 

states that Ubri was killed by a "[d]istant" wound,18 and suggests 

that the third shot entered Ubri in the "anterior region" of his 

left arm. Additionally, the government has admitted that 

Aguasvivas was handcuffed (albeit with hands in front) while the 

shots were fired. 

As both the district court and Aguasvivas have pointed 

out, this circuit noted in 1997 that its light-touch approach to 

the "any evidence" standard may have been out of keeping with the 

more searching approaches of other circuits, Kin-Hong, 110 F.3d at 

117 ("Recently, some other appellate courts, while retaining the 

traditional formulation, have apparently engaged in a more 

rigorous review of the evidence presented before the judicial 

officer, thus raising questions about the actual content of the 

'any evidence' standard."), and that the scope of habeas review 

had broadened somewhat in other ways since the "any evidence" 

standard was set out in Fernandez, id. ("[H]abeas corpus in other 

18 The magistrate judge wrote that the bullets were "fired 

at short range." We have not been able to locate a source for 

that contention. 
- 37 - 

contexts has expanded to become a 'second look' at most substantive 

and procedural issues."). However, as in Kin-Hong, we need not 

resolve this issue here. The eyewitness testimony, though 

presented through hearsay, in combination with the video, makes 

clear that the magistrate had evidence to conclude that there was 

a reasonable ground to believe Aguasvivas guilty. Determining 

whether he is in fact guilty is a task we would leave for the 

Dominican court system. 

III. 

For the foregoing reasons, the decision of the district 

court is affirmed as to the insufficiency of the documentation to 

support an extradition request under Article 7 of the treaty and 

affirmed as to the sufficiency of the probable cause determination, 

but reversed as to Aguasvivas's collateral estoppel claim. We 

remand for further proceedings consistent with this decision. 

– Concurring and Dissenting Opinion Follows – 
- 38 - 

LYNCH, Circuit Judge, concurring in part and dissenting 

in part. I join the holdings in the majority opinion finding 

collateral estoppel inapplicable, finding that the warrant was 

sufficient as to the naming of Aguasvivas, and upholding the 

probable cause determination. I dissent from the affirmance of 

the grant of habeas corpus on the basis that the documentation 

provided does not meet the requirements of the extradition treaty. 

I fear the majority opinion will undermine the purpose and letter 

of the treaty and the repercussions of its ruling will extend far 

beyond this case. 

The extradition treaty at stake states that: 

2. All extradition requests shall be supported 

by: 

(a) documents, statements, or other types 

of information that describe the 

identity, nationality, and probable 

location of the person sought; 

(b) information describing the facts of 

the offense or offenses and the 

procedural history of the case; 

(c) the text of the law or laws 

describing the offense or offenses for 

which extradition is requested and the 

applicable penalty or penalties; . . . 

(e) the documents, statements, or other 

types of information specified in either 

paragraph 3 or paragraph 4 of this 

Article, as applicable. 

 

3. In addition to the requirements in 

paragraph 2 of this Article, a request for 

extradition of a person who is sought for 

prosecution shall also be supported by: 
- 39 - 

 

(a) a copy of the warrant or order of 

arrest or detention issued by a judge or 

other competent authority; 

(b) a copy of the document setting forth 

the charges against the person sought; 

and 

(c) such information as would provide a 

reasonable basis to believe that the 

person sought committed the offense or 

offenses for which extradition is 

requested. 

Extradition Treaty ("Extradition Treaty"), Dom. Rep.-U.S., art. 7, 

§§ 2-3, Jan. 12, 2015, T.I.A.S. No. 16-1215. 

The majority holds that the requirement that the 

Dominican Republic provide "the document setting forth the 

charges" under Article 7, § 3(b) has not been met. It makes six 

textual arguments -- most of which were not made by Aguasvivas -- 

to justify rejecting the government's position that a warrant can 

be used as "the document setting forth the charges." In doing so, 

the majority concludes that a warrant cannot do "double duty," 

fulfilling the requirements of Article 7, § 3(a) and (b) 

simultaneously. 

I disagree with the result the majority reaches, which 

is based on incorrect and singular reasoning. The plain language 

of the Extradition Treaty does not require two documents, and the 

warrant is sufficient to meet the terms of § 3(b). The 
- 40 - 

government's interpretation of the treaty is reasonable, and the 

documents presented here comply with the treaty. 

I would hold that the treaty unambiguously permits a 

warrant to serve as "the document setting forth the charges" as 

long as it adequately describes the charges against the accused. 

And even if the treaty were ambiguous, the canons favoring a 

"liberal construction" of treaty obligations coupled with the 

agreement between the United States and the Dominican Republic 

that the provided documents fulfill the terms of the treaty produce 

an inescapable conclusion that a warrant alone can satisfy both 

treaty requirements. I would also hold that the warrant provided 

in this case adequately stated the charges against Aguasvivas and 

serves as "the document setting forth the charges" against him 

under Article 7, § 3(b). 

I. 

 I begin by reviewing the documents provided in support 

of extradition. Though the majority does not dwell on the 

particulars of the documents, a review of their text is essential 

to determining whether the Dominican government has adequately set 

forth charges against Aguasvivas. Both the Dominican Republic and 

the United States have provided documents supporting Aguasvivas's 

extradition. 

The Dominican embassy's extradition request states that 

the Dominican Republic seeks Aguasvivas "to respond to the charges 
- 41 - 

against him of Association of malefactors, robbery, murder and 

illegal possession of firearms." The embassy clarifies that 

Aguasvivas "is charged with the violation of Articles 265, 266, 

379, 383, 295 and 304 of the Dominican Criminal Code and Article 

39, Paragraph III of Law 36 about Trade and Possession of 

Firearms." The extradition request also attaches the affidavit of 

Dominican Prosecutor Feliz Sanchez Arias and a copy of the warrant 

authorizing Aguasvivas's arrest. 

 Prosecutor Sanchez Arias's affidavit sets forth the 

accusations against Aguasvivas and provides background on 

Dominican criminal procedure. Prosecutor Sanchez Arias states 

that he is "in charge of the criminal case that accuses . . . 

Aguasvivas . . . of crimes of association of malefactors, robbery, 

murder and illegal possession of firearms . . . sanctioned by the 

articles 265, 266, 379, 383, 295 and 304 of the Dominican Criminal 

Code and article 39, paragraph III of Law 36 about Trade and 

Possession of Firearms." He reiterates that Aguasvivas "is accused 

of" and "must respond for the violation of . . . the Dominican 

Criminal Code, and . . . Law 36 about Trade and Possession of 

Firearms." Based on these accusations, an arrest warrant was 

issued. According to Sanchez Arias, the warrant remains "in force, 

valid and enforceable." Though he has not sought an indictment, 

Sanchez Arias explains that in his experience, "[i]f the accused 

has escaped, the prosecutor asks the judge for a warrant for his 
- 42 - 

arrest," and that after the accused is apprehended, "the accused 

is presented by the prosecutor to the investigating judge, in order 

that he decides on the measure of coercion that must be applied to 

the accused." Sanchez Arias concludes that "[c]onsidering the 

evidence that exists on this case, [he] has the conviction that if 

[Aguasvivas] is extradited to the Dominican Republic, he shall be 

sentenced in criminal trial by the crimes he is charged." 

The arrest warrant, which was issued by a judge of the 

Dominican Republic authorized to issue such warrants, begins by 

describing the accusations against Aguasvivas. The warrant 

specifies that Aguasvivas is sought for arrest because he "disarmed 

and fired three shots to the agent LORENZO UBRI MONTERO causing 

his dea[th]," "seriously injured with firearms the agents of the 

National Directorate for Drug Control," and "disarmed . . . agents 

of the National Directorate for Drug Control who were participating 

in the anti-drug operation." As a result of these acts, Aguasvivas 

is "accused of violation of the articles 265, 266, 295, 304 and 

309 of the Dominican Criminal Code and article 39 of Law 36 on 

Trade and Possession of Firearms." The judge states that based on 

the evidence presented by the prosecutors, "the accused are the 

perpetrators of the accusation, and that they can run away, so it 

is appropriate to grant the authorization for their arrest." The 

warrant authorizes the detention of Aguasvivas for no more than 
- 43 - 

twenty-four hours unless the prosecutor requests an additional 

"coercive measure" from the court. 

 The United States has provided both a complaint seeking 

Aguasvivas's extradition and a statement from the Office of the 

Legal Advisor describing the United States' position on the proper 

interpretation of the Extradition Treaty. The complaint filed by 

the U.S. Attorney both lays out the government's treaty obligations 

to the Dominican Republic and confirms that "[a]ccording to the 

information provided by the Government of the Dominican Republic, 

AGUASVIVAS is charged with murder, aggravated robbery, conspiracy, 

and illegal firearm possession." The U.S. Attorney also states 

that Aguasvivas "would be likely to flee" if faced with a warrant 

for his arrest. 

The Office of the Legal Adviser states that "Article 

7.3(b) supplements Article 7.3(a) by ensuring that the Requesting 

State provide . . . the document that identifies the offenses with 

which the accused is charged and sought for prosecution." (Emphasis 

added.) "There is no requirement in Article 7, or elsewhere in 

the Treaty, that the requesting country provide separate documents 

to satisfy the requirements of Article 7.3(a) and (b)." The United 

States also explains that it has "reviewed the Arrest Warrant for 

Cristian Aguasvivas" and concluded that it "satisfies both Article 

7.3(a) and Article 7.3(b) of the Treaty." 
- 44 - 

II. 

When interpreting a treaty, we must begin "with the text 

of the treaty and the context in which the written words are used." 

E. Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (quoting 

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 

(1988)). If a treaty is unambiguous, it must be applied as 

written. See id. at 534-35; United States v. Li, 206 F.3d 56, 63 

(1st Cir. 2000) (relying on non-textual sources "[t]o the extent 

that the treaties' terms are ambiguous"). However, "treaties are 

construed more liberally than private agreements, and to ascertain 

their meaning we may look beyond the written words to the history 

of the treaty, the negotiations, and the practical construction 

adopted by the parties." E. Airlines, Inc., 499 U.S. at 535 

(quoting Air Fr. v. Saks, 470 U.S. 392, 396 (1985)). When a treaty 

contains ambiguities, canons of treaty interpretation require us 

to both give a treaty the "more liberal construction" when more 

than one is possible and to construe an extradition treaty in favor 

of enforcement. Factor v. Laubenheimer, 290 U.S. 276, 293–94 

(1933). Interpretive canons also require us to reject defenses to 

extradition that hinge on technicalities. See Fernandez v. 

Phillips, 268 U.S. 311, 312 (1925). Finally, "[a]lthough not 

conclusive, the meaning attributed to treaty provisions by the 

Government agencies charged with their negotiation and enforcement 

is entitled to great weight." Sumitomo Shoji Am., Inc. v. 
- 45 - 

Avagliano, 457 U.S. 176, 185 (1982); see also El Al Isr. Airlines, 

Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999) ("Because a 

treaty ratified by the United States is . . . an agreement among 

sovereign powers, we have traditionally considered as aids to its 

interpretation . . . the postratification understanding of the 

contracting parties." (quoting Zicherman v. Korean Air Lines Co., 

Ltd., 516 U.S. 217, 226 (1996))); GE Energy Power Conversion Fr. 

SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1645-

46 (2020). 

A. 

I first consider whether the plain language of Article 

7 permits the use of a single document to fulfill the requirements 

of both Article 7, § 3(a) and (b). The plain text of the treaty 

does not state that one document cannot meet both requirements. 

The requirements are listed separately to clarify that both 

requirements must be met, but that does not mean that two documents 

are required. As long as the document provided meets the terms of 

each individual requirement, the treaty terms are satisfied. 

The majority's arguments to the contrary are 

unconvincing. The majority argues that because both the United 

States and the Dominican Republic use "warrants to arrest and 

separate documents to charge," Article 7, § 3(b) must refer to 

something different than an arrest warrant. Again, I disagree. 

The particulars of how the Dominican Republic brings formal charges 
- 46 - 

have little bearing on whether an arrest warrant itself can set 

forth charges and fulfill both treaty requirements. If the 

drafters of the treaty wished to require something other than a 

warrant under § 3(b), they could have done so by requiring 

something like a "charging instrument." 

The majority also argues that the United States' 

construction of the treaty would render § 3(b) superfluous because 

a warrant will always describe the offenses charged. This argument 

is unpersuasive. Neither government agrees that the United States' 

reading of § 3(a) would make § 3(b) superfluous. There is nothing 

in the record to indicate that Dominican warrants always contain 

a description of the offenses charged, and it is not our role to 

investigate Dominican procedure. See Grin v. Shine, 187 U.S. 181, 

184-85 (1902). Further, the United States argues that foreign 

arrest warrants do not always set forth "any or all of the 

charges." This warrant meets the terms of § 3(b), but not all 

warrants necessarily will. 

Looking to Article 7, §§ 2 and 3 together does not change 

the analysis. The majority argues that because § 2 says that an 

extradition request must include information describing facts of 

the offense and the text of the relevant laws, § 3(b), which 

requires a copy of the document setting forth the charges, would 

necessarily be rendered surplus if the documents provided here 

were adequate under the treaty. This argument was not made by 
- 47 - 

Aguasvivas and the government has not had any notice it had to 

respond to this argument. In any case, the argument is 

unpersuasive. 

The portions of § 2 the majority says would be redundant 

with § 3 list the information that must be included in an 

extradition request, without any reference to what specific 

documents should be included. Extradition Treaty, art. 7, § 2(a)-

(c). In contrast, Article 7, § 3 makes clear that the request 

must include copies of the warrant and the appropriate document 

setting forth the charges rather than just, for example, a letter 

from the embassy containing all the information described in 

§ 2(a)-(c). Thus, in cases where there is an indictment setting 

forth the charges, § 3(b) says that a copy of the indictment should 

be included in the extradition request. And where the document 

setting forth the charges is a warrant, a copy of the warrant must 

be included. There is no surplusage here. And even if there were 

some redundancy, that would provide "only a clue" to the correct 

interpretation of a text because "[s]ometimes the better overall 

reading of the [text] contains some redundancy." Rimini Street, 

Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019). 

The majority's reference to Federal Rule of Criminal 

Procedure 4 is also inapposite. Rule 4 governs the issuance of 

arrest warrants or summons "on a [c]omplaint," and requires that 

the warrant "describe the offense charged in the complaint." Fed. 
- 48 - 

R. Crim. P. 4(b)(1)(B) (emphasis added). But the majority's 

argument is premised on the fact that the Dominican Republic has 

not filed a criminal complaint against Aguasvivas. Analogizing 

from our procedure to make conclusions about Dominican procedure 

-- especially when Dominican procedure is obviously different here 

-- is improper. See Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1449 

(9th Cir. 1987) (stating that the court should "refrain from 

interpreting the requirements of German criminal procedure both 

out of respect for German sovereignty and because [the court] 

recognize[d] the chance of erroneous interpretation"). And even 

if we were to analogize to the United States' criminal procedure, 

the warrant at issue here more closely resembles a Rule 41 warrant, 

which allows officers to search for and seize a person without 

filing a complaint when there is probable cause to arrest that 

person. See Fed. R. Crim. P. 41. Although the warrant here 

contains a description of the charges against the person sought, 

a Rule 41 warrant does not have to include such a description.19

See id. 

19 The majority argues that Rule 41 is not relevant because 

I have not identified an example of an arrest or detention pursuant 

to such a warrant. This misunderstands the point. The point is 

that we cannot extrapolate anything about the Dominican warrant in 

this case from Rule 4, because a Rule 4 warrant presupposes that 

the arrestee has already been formally charged with a crime. See 

Fed. R. Crim. P. 4. In our system, an officer does not need a 

warrant at all to arrest a person if there is probable cause. 

Gerstein v. Pugh, 420 U.S. 103, 113 (1975). Thus, Rule 41 

warrants, which are meant to aid officers in making arrests even 
- 49 - 

B. 

Next, this dissent evaluates whether Article 7, § 3(b), 

which requires the requesting country to provide "the document 

setting forth the charges," mandates that the requesting country 

provide an indictment, complaint, or other separate charging 

instrument.20 

Black's Law Dictionary defines a "charge" as a "formal 

accusation of an offense as a preliminary step to prosecution." 

Black's Law Dictionary (11th ed. 2019). This definition 

contradicts the majority's suggested reading that charges should 

be brought by means of an "indictment or the like." Instead, any 

document, including an arrest warrant, which details the crimes 

and acts the defendant is accused of committing and moves towards 

a prosecution can set forth charges under § 3(b). 

The statute governing interstate extradition and caselaw 

discussing that statute also indicate that "charges" should be 

when no Rule 4 warrant has issued and there is no charging 

instrument, are a better analog whether they are commonly used or 

not. See Fed. R. Crim. P. 41 advisory committee's note to 1979 

amendment (explaining that Rule 41 permits warrants to search for 

a person subject to arrest "even though no arrest warrant has 

theretofore issued."). 

20 The majority refuses to specify what kind of document is 

needed to fulfill § 3(b). It says that the document setting forth 

the charges must "indicate that the subject is wanted for 

prosecution," and must be "more than just a warrant.” The 

majority suggests, but does not hold, that the document should be 

an "indictment or the like." 
- 50 - 

interpreted broadly. 18 U.S.C. § 3182 states that "a copy of . . 

. an affidavit made before a magistrate" can serve as the document 

"charging the person demanded" with a crime for the purposes of 

interstate extradition. No formal charging instrument is 

required. See In re Strauss, 197 U.S. 324, 331-32 (1905) (holding 

that the Constitution and 18 U.S.C. § 3182 allow extradition on an 

affidavit even if that affidavit would not serve as a charging 

document sufficient to initiate a trial). 

Caselaw buttresses the conclusion that a person may be 

"charged" with an offense even if no formal charging document has 

issued. The Supreme Court has held that the word "charged" in the 

Extradition Clause of the Constitution "ought to be understood" 

"in the broad and practical sense." Pierce v. Creecy, 210 U.S. 

387, 402 (1908); see also id. at 404–05 (explaining that "the word 

'charged' was used in its broad signification to cover any 

proceeding which a state might see fit to adopt, by which a formal 

accusation was made against an alleged criminal" and thus that a 

document which "unmistakably describe[d] every element of the 

crime" was sufficient to show that "the accused was substantially 

charged with [a] crime." (quoting In re Strauss, 197 U.S. at 331)); 

id. at 403 (noting that for interstate extradition, there is no 

requirement of "a good indictment, or even an indictment of any 

kind" because extradition "requires nothing more than a charge of 

crime"). Specifically, the Supreme Court has held in the context 
- 51 - 

of interstate extradition that "a party is charged with [a] crime 

when an affidavit is filed, alleging the commission of the offense, 

and a warrant is issued for his arrest; and this is true whether 

a final trial may or may not be had upon such charge." In re 

Strauss, 197 U.S. at 331; see also id. at 332 ("Why should the 

state be put to the expense of a grand jury and an indictment 

before securing possession of the party to be tried?"); Rothgery 

v. Gillespie County, 554 U.S. 191, 210 (2008) (holding that "an 

initial appearance following a charge signifies a sufficient 

commitment to prosecute regardless of a prosecutor's 

participation, indictment, information, or what the County calls 

a 'formal' complaint."). 

Our sister circuits have similarly construed the term 

"charged" broadly in extradition treaties. See In re Assarsson, 

635 F.2d 1237, 1242 (7th Cir. 1980) (explaining that treaty 

requirement that individual be "charged" was "used in the generic 

sense only to indicate 'accused'"); In re Assarsson, 687 F.2d 

1157, 1160, 1163 n.13 (8th Cir. 1982) (holding that treaty which 

applied only to those "charged with or convicted" of an offense 

did not condition extradition on the existence of formal charges); 

Sacirbey v. Guccione, 589 F.3d 52, 67 (2d Cir. 2009) ("[W]e 

interpret these provisions to mean that the proof required under 

the Treaty to establish that an individual has been 'charged' with 

a crime is a valid arrest warrant and the evidence submitted in 
- 52 - 

order to obtain that warrant."); Emami, 834 F.2d at 1448–49 

(holding that formal charges were not required to show that 

defendant had been "charged"). Against this background, the 

requirement that the requesting party provide a document "setting 

forth the charges" cannot be transmuted into a requirement that 

the requesting party provide an "indictment or the like" rather 

than a warrant setting forth the charges. 

The cases relied upon by the majority further support 

the conclusion that a warrant may serve as a document "setting 

forth the charges." In Assarsson, a man was sought for extradition 

by the Swedish government. 635 F.2d at 1239. Under the terms of 

the treaty, Sweden could seek extradition of those who had been 

"charged with or convicted of" a list of offenses specified in the 

treaty. Id. at 1242. Assarsson argued that he had not been 

"charged with" a crime because no formal charges had been brought 

against him. See id. As in the instant case, the treaty specified 

a list of documents required to support an extradition request. 

Id. at 1243 n.7. The required documents included a "copy of the 

warrant of arrest or other order of detention issued by the 

competent authority of the requesting State," "a precise statement 

of the criminal act with which the person sought is charged," and 

"an authenticated copy of the texts of the applicable laws of the 

requesting State." Id. The Seventh Circuit concluded that the 

warrant was sufficient to show that Assarsson had been "charged" 
- 53 - 

under the terms of the treaty. Id. at 1242–43. The court explained 

that the word "charged" was used in contrast to "convicted," and 

thus was "used in the generic sense only to indicate 'accused.'" 

Id. at 1242. Furthermore, "[s]ince the parties [to the treaty] 

chose not to require production of the charge document, we can 

easily infer that they did not require the 'substance' of a charge 

either." Id. at 1243. The same reasoning applies here. There is 

nothing in the treaty to suggest that the "charges" must be 

anything more than accusations levied by the Dominican government. 

The treaty does not on its face require a charging instrument, and 

it is not appropriate for us to expand the Dominican Republic's 

obligations under the treaty. See id. at 1241 n.5 ("[C]ourts 

cannot expand the obligations of another nation under a treaty." 

(citing Grin, 187 U.S. at 191–92)). 

 The majority attempts to distinguish Assarsson by 

explaining that the treaty at issue required a warrant and a 

statement of the "criminal act . . . charged," while the treaty at 

issue here requires a warrant and "the document setting forth the 

charges." The majority argues that "[w]hen, subsequent to 

Assarsson . . . [the treating parties] added to the list of 

required documents 'the document setting forth the charges,' a 

strong inference arose supporting the conclusion that this treaty 

requires more than an arrest warrant." This argument does not 

hold. The majority makes too much of the modest differences in 
- 54 - 

the treaty language. As explained in Assarsson, "[i]f the parties 

had wished to include the additional requirement that a formal 

document called a charge be produced, they could have so provided." 

Assarsson, 635 F.2d at 1243. I agree that the treaty could have 

included a requirement for a formal charging document. But it 

does not. And contrary to the majority's reasoning, a document 

"setting forth the charges" is more akin to the statement of the 

"criminal act . . . charged" as required by the Assarsson treaty 

than to an indictment or other charging instrument. See id. at 

1243 n.7. 

 The majority also relies on Emami. In Emami, the German 

government sought to extradite Reza Emami for "detention for 

investigation." 834 F.2d at 1446. Formal charges had not been 

filed against Emami. Instead, the German government had issued an 

arrest warrant for the purpose of detaining and interrogating 

Emami. Id. at 1447. Emami first argued that he could not be 

extradited before the filing of a formal public charge because the 

treaty applied only to persons "who have been charged with an 

offense or are wanted by the other Contracting Party for the 

enforcement of a judicially pronounced penalty or detention 

order." Id. at 1448 (emphasis added). Citing Assarsson, the court 

rejected this notion, reasoning that the word "charged" was used 

to distinguish between those accused and those already convicted 

of an offense. Id. Further, the word "charged" had been "used as 
- 55 - 

a verb in the generic sense only to indicate 'accused'" and "could 

not be transmuted into a requirement that 'charges,' a noun, be 

filed." Id. (citing Assarsson, 635 F.2d at 1242-43). The court 

explained that it was appropriate to inquire into whether a 

defendant had been formally charged only if the treaty required a 

copy of a formal charging document. Id. As the treaty only 

required the requesting country to provide "[t]he text of all 

applicable provisions of law of the Requesting State concerning 

the definition of the offense," "[a] warrant of arrest," and "[a] 

summary statement of the facts of the case unless they appear from 

the warrant of arrest," the court would not inquire into whether 

a formal charge existed. Id. at 1488 & n.3. 

Emami next argued that he was not properly sought "for 

prosecution" because Germany had not shown an adequate intent to 

prosecute him. Id. at 1449. He contended that Germany had not 

shown a commitment to prosecute because it had requested him "for 

purposes of 'detention for investigation'" and had not filed 

charges against him. Id. at 1448. The court rejected this 

argument, explaining that it had "reservations against deciding 

questions of German criminal procedure" and holding that Germany's 

statement in its extradition request that Emami was wanted for 

prosecution was sufficient to show that Emami was wanted for 

prosecution under the terms of the treaty. Id. at 1449. 
- 56 - 

The majority's decision conflicts with both holdings. 

As with Assarsson, the majority attempts to distinguish Emami on 

the basis that the treaty at issue had different documentary 

requirements. But the core holding of Emami is that the court 

should not inquire into whether charges have been brought unless 

the treaty unequivocally requires a charging document. The 

extradition treaty at issue in this case does not require a 

charging document, so we should recognize that any document that 

sets forth the charges fulfills the requirement of § 3(b). 

The majority's decision also flatly contradicts the 

Emami court's holding that a foreign government's statement of 

intent to prosecute is sufficient to show that a person is sought 

"for prosecution." As in Emami, the Extradition Treaty provides 

for the extradition of people sought "for prosecution" and the 

Dominican Republic seeks to interrogate the suspect before the 

filing of formal charges. See id. at 1448. Like in Emami, the 

Dominican Republic has given clear signals that it intends to 

prosecute Aguasvivas: the Dominican State Department specified 

that it wishes to extradite Aguasvivas "to respond to the charges 

against him," and the prosecutor "in charge of the criminal case 

that accuses" Aguasvivas has concluded that "[c]onsidering the 

evidence that exists on this case, [he] has the conviction that if 

[Aguasvivas] is extradited to the Dominican Republic, he shall be 

sentenced in criminal trial by the crimes he is charged." 
- 57 - 

Nevertheless, the majority insists that the requirement that 

Aguasvivas be sought for prosecution means that more than an arrest 

warrant is required. This holding both contradicts Emami and 

undercuts the purpose of the treaty. In light of Emami and 

Assarsson, the majority's ruling in this case will create a circuit 

split suitable for Supreme Court review.

 The additional arguments made by the majority do not 

support its conclusion that the warrant does not adequately set 

forth the charges against Aguasvivas. 

 The majority's fifth argument -- also not made by 

Aguasvivas -- is that because the Extradition Treaty was drafted 

after Emami and Assarsson, and the 1909 Extradition Treaty between 

the Dominican Republic and the United States required only a 

warrant, the addition of a requirement that the requesting party 

provide the document setting forth the charges was meant "to call 

for the production of more than just a warrant." I disagree with 

this reasoning. First, as explained above, Emami and Assarsson 

counseled the State Department that if it wanted an extradition 

treaty to require a formal charging instrument, then it should 

explicitly add such a requirement to the treaty. When, as here, 

a later treaty does not contain such a requirement, then we should 

not read it in. Second, the 2015 treaty replaced the entire text 

of the 1909 treaty with different text very similar to a 

significant number of extradition treaties between the United 
- 58 - 

States and other Caribbean and South American countries. See, 

e.g., Extradition Treaty, Chile-U.S., art. 8, § 3(b), June 5, 2013, 

T.I.A.S. No. 16-1214 (requiring "a document setting forth the 

charges" to support an extradition request); Extradition Treaty, 

Gren.-U.S., art. 6, § 3(b), Sept. 14, 1999, T.I.A.S. No. 99-914.1 

(same); Extradition Treaty, St. Kitts & Nevis-U.S., art. 6, § 3(b), 

Sept. 18, 1996, T.I.A.S. No. 12,805 (same). Thus, because the 

text was based on other treaties, rather than an article by article 

revision of the 1909 treaty, textual differences between the 1909 

treaty and the 2015 treaty should not be given undue weight in 

interpreting the 2015 treaty. 

The majority's sixth argument -- also not made by 

Aguasvivas -- is unconvincing. The majority argues that because 

the Austrian and Israeli extradition treaties explicitly allow for 

extradition when there is no "charging document," then we should 

not read the Dominican extradition treaty to also allow for 

extradition absent a charging document. This argument ignores 

critical differences in language between those treaties and the 

treaty at issue. The Austrian and Israeli treaties specifically 

require a "charging document" if one exists rather than a more 

general "document setting forth the charges." Extradition Treaty, 

Austria-U.S., art. 10, § 3(b), Jan. 8, 1998, T.I.A.S. No. 12,916; 

Protocol Amending the Convention between the United States of 

America and Israel of December 10, 1962, Isr.-U.S., art. 6, July 
- 59 - 

6, 2005, T.I.A.S. No. 07-110. If anything, the fact that other 

treaties use the phrase "charging document" suggests that "the 

document setting forth the charges" should not be narrowly 

interpreted to mean "the charging document." 

Finally, in addition to the document setting forth the 

charges, the treaty requires "a copy of the warrant or order of 

arrest or detention issued by a judge or other competent 

authority." Extradition Treaty, art. 7, § 3(a) (emphasis added). 

While the warrant provided in this case is nominally an arrest 

warrant, the warrant could also be understood as a warrant of 

detention. As explained in the warrant, the Dominican Code of 

Criminal Procedure allows a judge to issue warrants to detain 

individuals for questioning. The record in this case shows that 

Prosecutor Sanchez Arias seeks to detain Aguasvivas to interview 

him before bringing formal charges, as Dominican procedure allows, 

and the warrant only authorizes the prosecutor to detain Aguasvivas 

for twenty-four hours for questioning. If the treaty were read to 

require an indictment or complaint, that sequence would never be 

permitted, despite the treaty's provision allowing for extradition 

on a warrant or order of detention.21 

21 Contrary to the majority's argument, I do not assume 

that there could never be an extradition based on an order of 

detention if a formal charging document were required by the 

treaty. Rather, as the United States explains, Dominican procedure 

allows the government to seek pre-indictment warrants and 

extraditions to detain and question suspects. Thus, when the 
- 60 - 

In light of the plain text of the treaty and ample 

precedent on the meaning of "charges," I would hold that the treaty 

unambiguously permits any official document describing both the 

criminal acts committed by the defendant and the laws violated by 

the defendant to serve as a "document setting forth the charges." 

I would also hold that the treaty unambiguously permits one 

document to fulfill the requirements of both Article 7, § 3(a) and 

Article 7, § 3(b). The majority's contrary holdings put this court 

at odds with Supreme Court precedent and the decisions of our 

sister circuits. 

The arrest warrant for Aguasvivas adequately specifies 

the laws Aguasvivas is accused of violating, describes the criminal 

acts that Aguasvivas is charged with performing, and lists the 

evidence supporting these charges. Thus, it is sufficient to set 

forth the charges under the terms of the treaty. 

C. 

 A finding that the treaty is ambiguous would lead me to 

the same result. When a treaty is ambiguous, the parties' 

reasonable interpretation is essentially binding on the court. 

See Sumitomo Shoji Am., Inc., 457 U.S. at 185 ("When the parties 

to a treaty both agree as to the meaning of a treaty provision, 

treaty expressly allows for extradition on an "order of detention" 

in addition to an arrest warrant, a strong inference arises that 

the Dominican Republic should be permitted to use this preindictment procedure to extradite Aguasvivas. 
- 61 - 

and that interpretation follows from the clear treaty language, we 

must, absent extraordinarily strong contrary evidence, defer to 

that interpretation."). Furthermore, "if 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, 290 U.S. at 293-94; see 

also Grin, 187 U.S. at 184 (stating that extradition treaties 

should be "interpreted with a view to fulfil our just obligations 

to other powers."). 

The United States and the Dominican Republic agree that 

the warrant can fulfill the requirements of § 3(b). The State 

Department opines that "Article 7(3)(b) supplements Article 

7(3)(a) by ensuring that the Requesting State provide not only the 

document that functions as a 'warrant or order of arrest or 

detention issued by a judge or other competent authority,' but 

also the document that identifies the offenses with which the 

accused is charged and sought for prosecution in the Requesting 

State." However, "[t]here is no requirement . . . that the 

requesting country provide separate documents." A representative 

from the Office of the Legal Advisor represented that he had 

"reviewed the Arrest Warrant for Cristian Aguasvivas submitted by 

the Dominican Republic in this extradition request," and concluded 

that it "satisfie[d] both Article 7.3(a) and Article 7.3(b) of the 

Treaty." The extradition complaint filed in the district court 
- 62 - 

also explains that Aguasvivas "is charged with murder, aggravated 

robbery, conspiracy, and illegal firearm possession, in violation 

of Articles 265, 266, 295, 304, 379, and 383 of the Dominican 

Criminal Code, and Article 39, Paragraph III, of Dominican Law 36 

on Trade and Possession of Firearms." (emphasis added). 

The Dominican Republic has also made clear that they 

believe Aguasvivas has been charged with several crimes and that 

they have provided sufficient documentation for his extradition. 

The communication from the Dominican embassy specifies that it 

requests Aguasvivas's extradition so that he can "respond to the 

charges against him of Association of malefactors, robbery, 

murder, and illegal possession of firearms." Prosecutor Sanchez 

Arias declares that the "[t]reaty does not state as a requirement 

for . . . extradition, the prior existence of an indictment against 

the person required in extradition." He explained that an 

indictment had not been obtained because "the Prosecutor wants to 

know the version of the accused of how and why he perpetrated the 

facts imputed to him . . . prior [to] filing an indictment against 

him." The warrant also states on its face that Aguasvivas is 

"accused of violat[ing]" several articles of the Dominican 

Criminal Code. 

In the face of this agreement, if the treaty is 

ambiguous, we must defer to the parties and hold that the warrant 

fulfills the requirements of Article 7, § 3(b). 
- 63 - 

III. 

 The majority approach is forbidden by Supreme Court 

precedent in several respects. First, the Supreme Court has 

cautioned against expanding the treaty obligations of other 

countries. See Grin, 187 U.S. at 191 ("The treaty is undoubtedly 

obligatory upon both powers, and, if Congress should prescribe 

additional formalities than those required by the treaty, it might 

become the subject of complaint by the Russian government and of 

further negotiations."). Instead, extradition treaties should be 

"faithfully observed, and interpreted with a view to fulfil our 

just obligations to other powers." Id. at 184. Insisting that 

the Dominican Republic provide a charging document when the treaty 

does not explicitly include such a requirement puts an 

impermissible burden on the Dominican Republic and will stand in 

the way of the United States' faithful adherence to its treaty 

obligations, both to the Dominican Republic and the many other 

countries whose treaties similarly require "document[s] setting 

forth the charges." 

Second, courts should refrain from imposing standards 

that cause the validity of an extradition request to turn on the 

technical form of the request. See Glucksman v. Henkel, 221 U.S. 

508, 512 (1911) ("[W]hile . . . a man is not to be sent from the 

country merely upon demand or surmise, . . . if there is presented, 

even in somewhat untechnical form according to our ideas, such 
- 64 - 

reasonable ground to suppose him guilty as to make it proper that 

he should be tried, good faith to the demanding government requires 

his surrender."); Yordi v. Nolte, 215 U.S. 227, 230–31 (1909) 

(moving away from the "extreme technicality with which 

[extradition] proceedings were formerly conducted" and holding 

that extradition complaints "need not be drawn with the formal 

precision of an indictment"). Where an extradition proceeding "is 

manifestly taken in good faith, a technical noncompliance with 

some formality of criminal procedure should not be allowed to stand 

in the way of a faithful discharge of our obligations." Grin, 187 

U.S. at 184–85. Furthermore, courts should not be required to 

become familiar with foreign criminal procedure in order to resolve 

extradition requests. Id. at 190 (stating that the court should 

not be "expected . . . [to] become conversant with the criminal 

laws of Russia, or with the forms of warrants of arrest used for 

the apprehension of criminals"); see also Assarsson, 635 F.2d at 

1244 ("We are also not expected to become experts in the laws of 

foreign nations." (citing Grin, 187 U.S. at 181)). 

Cases from our sister circuits expand on these notions. 

In Assarsson, the court explained that courts should "refus[e] to 

review compliance with foreign criminal procedure . . . based on 

respect for the sovereignty of other nations." 635 F.2d at 1244. 

"This respect is embodied in the procedural framework of 

international extradition, which 'gives to the demanding country 
- 65 - 

advantages most uncommon to ordinary civil and criminal 

litigation.'" Id. (quoting First Nat'l City Bank of N.Y. v. 

Aristeguieta, 287 F.2d 219, 226 (2d Cir. 1960), vacated as moot, 

375 U.S. 49 (1963)). Furthermore, courts should avoid inquiries 

that require them to evaluate and interpret the laws of foreign 

nations because such inquiries carry a high risk of error. Id. 

("[T]he chance of error is much greater when we try to construe 

the law of a[nother] country . . . ."); see also Emami, 834 F.2d 

at 1449 (concluding that the court should "refrain from 

interpreting the requirements of German criminal procedure both 

out of respect for German sovereignty and because [the court] 

recognize[d] the chance of erroneous interpretation"). 

These holdings do not forbid us from inquiring into the 

sufficiency of the documents provided by the Dominican Republic. 

But the majority's interpretation of the treaty will unnecessarily 

require courts to evaluate whether the documents presented include 

a proper charging document rather than accepting the 

representations of the Dominican Republic that the defendant has 

been charged with several crimes.22 The majority's holding also 

22 The dangers of this type of inquiry appear even in this 

case. While the majority suggests that a criminal complaint by a 

victim would suffice as a document setting forth the charges, such 

a complaint does not indicate that a prosecutor will in fact bring 

charges. 

Prosecutor Sanchez Arias's affidavit states that "[t]he 

aggrieved parties may also file a criminal complaint against the 

accused and collaborate proactively with prosecutors in the work 
- 66 - 

hinges on its conclusion that the Dominican Republic will never 

issue a warrant that does not describe all of the offenses charged 

against the person sought for extradition. This type of reasoning 

goes against the weight of precedent cautioning against inquiries 

into the criminal procedure of other nations. We should inquire 

only whether the documents adequately describe and give notice of 

the charges against Aguasvivas. 

IV. 

The majority's decision, in my view, harms the United 

States in the conduct of foreign affairs and is in conflict with 

the views of other circuits. And because the treaty language at 

issue in this case is nearly identical to the language in a large 

number of extradition treaties with Caribbean and South American 

countries, the majority opinion will have repercussions far beyond 

this case. Though the Dominican Republic may file an acusación 

and attempt to extradite Aguasvivas again, in all likelihood 

Aguasvivas will never be found to permit extradition to face 

charges in the Dominican Republic. 

I respectfully dissent. 

of investigation" but that "[t]he prosecutor decides whether or 

not to bring charges" and if the prosecutor does bring charges 

"the complainant adheres to the accusation." It is not clear from 

the majority opinion whether a victim's complaint unsupported by 

a prosecutor would fulfill the terms of § 3(b).