United States District Court, N.D. Illinois, Eastern Division
IN THE MATTER OF THE EXTRADITION OF RODOLFO DEIBY BURGOS NOELLER,
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge
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.
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]. 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
February 26 and March 8, 1 was out of the country on vacation
with my wife.
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],  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].
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].
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
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).
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"). 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).
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.
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