Baramdyka

95 F.3d 840 96 Cal. Daily Op. Serv. 6741 , 96 Daily Journal D.A.R. 11,041 UNITED STATES of America, Plaintiff-Appellee, v. Frankell Ivan BARAMDYKA, Defendant-Appellant. Frankell Ivan BARAMDYKA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Nos. 94-50051, 95-55066. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 20, 1995. Decided Sept. 10, 1996. 1 Laura P. Gordon, San Diego, California, for defendant-appellant. 2 Mary A. Schneider and Bruce R. Castetter, Assistant United States Attorneys, San Diego, California, for plaintiff-appellee. 3 Appeals from the United States District Court for the Southern District of California Howard B. Turrentine, District Judge, Presiding; Nos. CR-86-01077-HBT, CV-94-01316-HBT. 4 Before POOLE and O'SCANNLAIN, Circuit Judges, and MARSH, * District Judge. MARSH, District Judge: 5 Appellant was charged in four counts of a 12-count, 18-defendant indictment, with conspiracy to import and distribute cocaine in violation of 21 U.S.C. §§ 952 , 960 and 963 (count 1), conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1) and 846 (count 2), conspiracy to…

Appellant was charged in four counts of a 12-eount, 18-defendant indictment, with conspiracy to import and distribute cocaine in violation of 21 U.S.C. §§ 952 , 960 and 963 (count 1), conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1) and 846 (count 2), conspiracy to transport monetary instruments in excess of $10,000 without filing reports required by law in violation of 18 U.S.C. § 371 , 31 U.S.C. §§ 5316 and 5322 (count 3) and travel in interstate commerce with the intent to carry on an unlawful activity (violations of 21 U.S.C. § 952 , 960, 963, 846, 841(a)(1)) in violation of 18 U.S.C. § 1952 (a)(3) (count 8). The government alleged that Baramdyka was the “head of a large scale drug trafficking organization” which was responsible for the importation and distribution of approximately 1,000 kilograms of cocaine into the United States from Colombia between approximately July of 1984 and May of 1985.

Prior to indictment, but shortly after learning that charges were imminent, Bar-amdyka left the United States with his family and moved to Chile. On March 10,1987, the United States government made a request to Chile for extradition of…

concurring in part and dissenting in part:

I agree that Baramdyka’s ineffective assistance of counsel claims, his double jeopardy claim, and his claim on direct appeal that the district court erred by failing to reduce his sentence for time served in Chile have all either been waived or lack merit. My disagreement with the majority is limited only to the disposition of Count 8 in his habeas appeal.

I would vacate Baramdyka’s conviction and five-year probationary sentence because in my view, Chile has not waived its rights under the United States-Chilean extradition treaty, nor under the doctrines of specialty and dual criminality incorporated in that treaty, to preclude the United States from prosecuting Baramdyka on that count. Because, as a matter of treaty, the United States was barred from prosecuting Count 8, I respectfully dissent from part of the court’s opinion.

“As a matter of international comity, the doctrine of specialty prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite.” United States v. Khan, 993 F.2d 1368, 1373 (9th Cir.1993) (citations, internal…