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In re Extradition of Noeller

United States District Court, N.D. Illinois, Eastern Division

March 21, 2018

IN THE MATTER OF THE EXTRADITION OF RODOLFO DEIBY BURGOS NOELLER,

          MEMORANDUM OPINION AND ORDER

          Jeffrey Cole Magistrate Judge

         INTRODUCTION

         The history of this foreign extradition case will be found in Matter of Extradition of Rodolfo Deiby Burgos Noeller, 2017 WL 6462358 (N.D. Ill.Dec. 19, 2017); Matter of Extradition of Rodolfo Deiby Burgos Noeller, 2018 WL 1027513 (N.D. Ill. Feb. 23, 2018); and Matter of Extradition of Rodolfo Deiby Burgos Noeller, 2018 WL 1225486 (N.D. Ill. March 9, 2018)(the latter Opinion reissued today and referred to below). Familiarity with that history will be presumed.

         The extensive extradition hearing in this case, at which the defendant insisted on testifying, was completed on January 12, 2018, On February 23, 2018, my Opinion granting the government's request for extradition to Mexico was entered. [Dkt. #43].[1] Between February 26 and March 8, 1 was out of the country on vacation with my wife. On March 2, 2018, the government sent an email to the Proposed Order Minute Box stating that "in order to effectuate the extradition" the Secretary of State "require[d]" an "Order, Certification And Committal consistent with the substance of the court's February 23, 2018 order...." (See Group Exh. 1). The proposed order had not been submitted to me until more than a week after the Opinion of February 23, and more than seven weeks after the extradition hearing had been completed. Nor had the defendant submitted anything either at the time the extradition hearing ended or in the ensuing seven weeks. The belated request of the Secretary of State seemed to me to be an example of the "clunky" methods too often appearing in extradition disputes. DeSilva v. DiLeonardi, 181 F.3d 865, 869-70 (7th Cir. 1999).[2]

         Between February 26 and March 8, 1 was out of the country on vacation with my wife.

         On March 5, 2018, while I was out of the Country, the defendant filed his objections to the Secretary's request that the supposedly "required" form be entered. [Dkt. #44]. Then, two days later, on March 7, while the defendant's objections to entry of the government's form order were pending before me, the defendant filed a petition for writ of habeas corpus in the district court to review the decision granting the government's request for extradition. [Dkt. #45]. On March 9, necessarily concluding that the defendant's filing of the writ did not divest me of jurisdiction, I entered the form that had been requested by the Secretary of State, accompanied by an Opinion. [Dkt. ##48, 49], [3] The next day, the defendant filed a two-and-a-half page motion before Judge Pallmeyer claiming that she had "sole" jurisdiction over the matter as a consequence of the filing of the filing of the petition for writ of habeas corpus on March 7. [Dkt. #45], The motion was captioned "Motion To Strike Supplemental Extradition Order And Government's Additional Filing For Lack of Jurisdiction." [Dkt. #50].

         On March 13, Judge Pallmeyer entered an order stating that she "deem[ed] it appropriate to remand proceedings" to this court. The order concluded: "the case is hereby REMANDED." (Capitalization in original). [Dkt. #53].

         Pursuant to that remand, I held a status conference on March 20 to solicit the views of the parties. It was agreed that a reissuance of the March 9 orders would cure the jurisdictional problem voiced by the defendant. Nonetheless, a brief review of what has transpired is appropriate.

         RELEVANT FACTS

         A.

         Although I was scheduled to leave the country for a trip with my wife on February 25, 1 did not want the parties and their counsel to have to await my return in order to have a decision in this extradition case. Thus, I issued the Opinion of February 23 before I left. [Dkt. #43]. While I was away with my wife it was brought to my attention by my courtroom deputy that on March 2, 2018, the government, in my absence, had sent to the Proposed Order Minute Box an email asking that I enter a proposed Order that the government said was "consistent with the substance of the Court's February 23, 2018 order...." The email explained that the Secretary of State "requires" that a court's conclusion that extradition should proceed in a given case must be in a certain form. Thus, the Secretary required an Order, Certification and Committal for Extradition in the "form" of a Proposed Order that was nine paragraphs long. The defendant's lawyer was copied on the email and provided with a copy of the form said to be required by the Secretary. (A copy of this email and those that followed are attached as Group Exhibit 1).

         Since 18 U.S.C. §3184 ("Fugitives from foreign countries to United States") did not prescribe a particular form that had to be followed, it seemed to me that at bottom the Secretary's insistence on a particular format unnecessarily exalted "form over substance"- a principle that applies in extradition cases. Matter of Extradition of Rodolfo Deiby Burgos Noeller, 2018 WL 1225486, at *2 (N.D. Ill. 2018); In re Extradition of Aquino, 697 F.Supp.2d 586, 590 (D.N.J. 2010); Extradition of Ernst, 1998 WL 167324, at *3 (S.D.N.Y.1998); Matter of Extradition of Matus, 784 F.Supp. 1052, 1057 (S.D.N.Y.1992). Law concerns itself with substance, not form- with actual operative effects, not abstract theoretical functioning. Blueford v. Arkansas, 566 U.S. 599, 611-612 (2012). This is a principle endorsed in any number of contexts, both civil and criminal. See e.g., United States v. Peden, 872 F.2d 1303, 1309 (7th Cir. 1989); Frank Lyon v. United States, 435 U.S. 561, 573 (1978); Reliance Ins. Co. v. Zeigler, 938 F.2d 781, 785 (7th Cir. 1991)("needless elevation of form over substance").[4] And it is one that Judge Pallmeyer has often espoused. See e.g., Brown v. Ghosh, 2017 WL 1178151, at *3 (N.D. Ill. 2017)("Brown's position would value form over substance, and the court will not do so."); Winter stein v. Crosscheck, Inc., 149 F.Supp.2d 466, 470 (N.D. Ill. 2001)("the court believes this is an effort to exalt form over substance"); Quadro Enterprises, Inc. v. Avery Dennison Corp., 2000 WL 1029176, at *6 (N.D. Ill. 2000). "Failure to apply that principle... greatly increase[s] the burden on the federal courts." United States v. Boyd, 5 91 F.3d 953, 955 (7th Cir. 2010).

         In any event, an hour later, the defendant's lawyer sent to my Proposed Order Minute Box an email stating that while she conceded that the Proposed Order's certification of extradition was consistent with my Opinion, she contended that the Secretary's nine-paragraph order "contain[ed] very specific findings of fact not all of which were addressed by the February 23 order and memorandum." She said she objected to entry of the Secretary's proposed order "without the reissuance of the memorandum which incorporates and discusses each of these findings of fact, " See Group Exh. 1 (Emphasis supplied). How the two varied, the defendant's lawyer did not say.

         On March 5, my courtroom deputy was instructed to tell the defendant's lawyer that any objection to the government's request should be filed, which she did. The defendant's two-and-a-half page filing was titled "Objections To The Government's Untimely And Informal Request For The Entry Of A New Order Certifying Extradition, Which Contains Additional Findings Of Fact Not Addressed In The Filed Order And Memorandum." [Dkt. #44]. The defendant's filing concluded with the request ...


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