International issues in criminal law: Extradition of El Chapo and extraterritoriality in Nigeria

Irina Baranova
Petitions of the week

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether defendants have standing to assert violations of an extradition treaty and whether the wire fraud statute applies extraterritorially to reach a defendant’s conduct committed only in Nigeria.

El Chapo seeks standing to argue that his trial violated the extradition treaty with Mexico

Guzman Loera v. United States is a petition brought by Joaquin Guzman Loera, better known as El Chapo, the former leader of a Mexican drug cartel who is serving a life sentence in Colorado. He asks the justices to allow him to assert violations of an extradition treaty. Guzman Loera does not contest the evidence that contributed to his conviction for his role in the Sinaloa Cartel. Instead, he claims that his trial in the U.S. District Court for the Eastern District of New York violated the extradition treaty between the United States and Mexico. According to Guzman Loera, Mexico originally extradited him to Texas and California to face changes there. After the government moved him to Brooklyn, Guzman Loera maintains, the United States fraudulently obtained Mexico’s waiver for that trial.

The district court dismissed his claim, ruling that Guzman Loera lacked standing because treaties create rights and duties only between the sovereign nations. The U.S. Court of Appeals for the 2nd Circuit affirmed, reasoning as well that, even if a defendant could sometimes raise a claim under the treaty, Mexico had in fact consented to this trial (ignoring, Guzman Loera insists, his allegation that Mexico’s consent was fraudulently obtained). In his petition, Guzman Loera asserts a 4-4 circuit split on this issue. Raising a second question, Guzman Loera also asks the justices whether his pretrial restraints, including solitary confinement and restricted communication, were so “excessive and punitive” as to violate his constitutional rights.

A Nigerian defendant challenges conviction for wire fraud for conduct committed only in Lagos

Ojedokun v. United States presents the justices with an issue concerning the extraterritorial application of a federal statute. In 2021, a federal jury convicted Seun Banjo Ojedokun of wire fraud for sending emails containing wire transfer documents at a cyber-café in Lagos, Nigeria. At the time (2013-2015), Ojedokun insists, he had never traveled to the United States and did not participate in telephone or virtual meetings with conspirators in the United States. The FBI only arrested Ojedokun in 2019, two years after he came to the United States to pursue a doctorate in chemistry. The U.S. Court of Appeals for the 4th Circuit rejected Ojedokun’s argument that the wire fraud statute did not apply extraterritorially to his conduct. Another provision in the wire fraud statute allows for extraterritorial application if “in the case of a non-United States citizen, the conduct occurs in part in the United States.” To the 4th Circuit, this provision was satisfied because, regardless of where Ojedokun’s conduct occurred, part of the conspiracy occurred in the United States. In his petition, Ojedokun argues that the 4th Circuit’s approach violates the Supreme Court’s “clear statement” test for extraterritoriality. He also maintains that the lower courts are split on how the government can rebut the presumption against extraterritoriality.

These and other petitions of the week are below:

Tat v. United States
21-1352
Issue: Whether plain-error review governs claims on appeal of error under Rogers v. United States (premised on a district court’s failure to allow the defendant to be present, to participate, or to object during a deliberating jury’s questions), as the U.S. Court of Appeals for the 9th Circuit held below, or whether such claims are reviewed for harmlessness beyond a reasonable doubt, as the U.S. Courts of Appeals for the 8th and District of Columbia Circuits have held.

Guzman Loera v. United States
21-1378
Issues: (1) Whether under the Supreme Court’s precedent in United States v. Rauscher individuals have standing to assert violations of an extradition treaty, irrespective of whether the foreign sovereign raises an objection; and (2) whether excessive and punitive pretrial restraints impaired petitioner Guzman Loera’s right to counsel, a defense, and compulsory due process.

Ojedokun v. United States
21-1380
Issue: Whether, as in civil cases, a clear indication of congressional intent is required to rebut the presumption against extraterritorial application of a United States criminal statute.

International issues in criminal law: Extradition of El Chapo and extraterritoriality in Nigeria

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