United States v. Garavito-Garcia

15‐2454‐cr
United States v. Garavito‐Garcia
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2015
No. 15‐2454‐cr
U NITED S TATES OF AMERICA,
Appellee,
v.
R AFAEL ANTONIO GARAVITO‐G ARCIA, ALSO KNOWN
AS S EALED D EFENDANT 1, ALSO KNOWN AS E L V IEJO ,
Defendant‐Appellant.*
On Appeal from the United States District Court
for the Southern District of New York
A RGUED: JUNE 14, 2016
D ECIDED: JULY 1, 2016
Before: NEWMAN, C ABRANES , AND C ARNEY , Circuit Judges.
* The Clerk of Court is instructed to amend the caption of this appeal as
indicated above.

-- 1 of 19 --

15‐2454‐cr
United States v. Garavito‐Garcia
On appeal from the July 22, 2015 judgment of conviction
entered against defendant‐appellant Rafael Antonio Garavito‐Garcia
by the United States District Court for the Southern District of New
York (Jed S. Rakoff, Judge) on counts of narcoterrorism conspiracy, in
violation of 21 U.S.C. § 960a (Count One); cocaine‐importation
conspiracy, in violation of 21 U.S.C. § 963 (Count Two); conspiracy
to provide material support to a foreign terrorist organization, in
violation of 18 U.S.C. §§ 2339B(a)(1) and (d)(1) (Count Three); and
conspiracy to acquire and transfer anti‐aircraft missiles, in violation
of 18 U.S.C. § 2332g (Count Four).
Garavito‐Garcia raises four issues on appeal: (1) that the
District Court improperly denied his motion to dismiss the
indictment for lack of jurisdiction resulting from Colombia’s
violation of its extradition treaty with the United States; (2) that the
evidence at trial was insufficient to prove he knowingly participated
in any of the conspiracies with which he was charged; (3) that a
supplemental instruction the District Court gave in response to a
jury note was improper; and (4) that Count Three of the indictment
was “multiplicitous” of Count One. Finding each of these arguments
unpersuasive, we AFFIRM the District Court’s judgment.
ILAN G RAFF (Shane Stansbury & Adam S.
Hickey, on the brief), Assistant United States
Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New
York, New York, NY, for Appellee.

-- 2 of 19 --

3
R OBERT W. R AY (Justin J. Krane, on the brief),
Fox Rothschild LLP, New York, NY, for
Defendant‐Appellant.
JOSÉ A. C ABRANES, Circuit Judge:
Defendant‐appellant Rafael Antonio Garavito‐Garcia appeals
from the July 22, 2015 judgment of conviction entered against him
by the United States District Court for the Southern District of New
York (Jed S. Rakoff, Judge) on counts of narcoterrorism conspiracy, in
violation of 21 U.S.C. § 960a (Count One); cocaine‐importation
conspiracy, in violation of 21 U.S.C. § 963 (Count Two); conspiracy
to provide material support to a foreign terrorist organization,
namely the Fuerzas Armadas Revolucionarias de Colombia (the
“FARC”), in violation of 18 U.S.C. §§ 2339B(a)(1) and (d)(1) (Count
Three); and conspiracy to acquire and transfer anti‐aircraft missiles,
in violation of 18 U.S.C. § 2332g (Count Four).
Garavito‐Garcia raises four issues on appeal: (1) that the
District Court improperly denied his motion to dismiss the
indictment for lack of jurisdiction resulting from Colombia’s
violation of its extradition treaty with the United States; (2) that the
evidence at trial was insufficient to prove he knowingly participated
in any of the conspiracies with which he was charged; (3) that a
supplemental instruction the District Court gave in response to a
jury note was improper; and (4) that Count Three of the indictment

-- 3 of 19 --

4
was “multiplicitous” of Count One. Finding each of these arguments
unpersuasive, we AFFIRM the District Court’s judgment.
BACKGROUND
On January 8, 2013, the Government filed a four‐count
superseding indictment against Garavito‐Garcia, which contained
the charges described above.1 The charges stemmed from Garavito‐
Garcia’s participation in a conspiracy “to ship ton‐quantities of
FARC‐owned cocaine across the Atlantic Ocean to Guinea[‐]Bissau,
and then to store the cocaine in Guinea[‐]Bissau before its shipment
to other locations, including the United States.”2 Throughout the
course of the conspiracy, Garavito‐Garcia “interacted with two
individuals who purported at all times to be representatives and/or
associates of the FARC,” but who were actually “confidential
sources working for the Drug Enforcement Administration” (the
“DEA”).3
The Government further alleged that Garavito‐Garcia
“leveraged his connections to senior officials in
Guinea[‐]Bissau . . . to facilitate . . . the purchase of military‐grade
weapons by the FARC”4 —specifically, “an explosive and incendiary
rocket and missile that is guided by a system designed to enable the
1 A‐21–32.
2 A‐20.
3 Id.
4 Government’s Br. 3; A‐20, A‐29–32.

-- 4 of 19 --

5
rocket and missile to seek and proceed toward energy radiated and
reflected from an aircraft and toward an image locating an aircraft,”
as well as other equipment necessary for their use.5 The senior
Bissau‐Guinean officials in question included General Antonio
Indjai, the commander of Guinea‐Bissau’s armed forces, and General
Indjai’s “right‐hand man,” Captain Julio M’Bali.6
Garavito‐Garcia was arrested in Colombia on April 5, 2013. 7
Soon thereafter, the Government formally requested his extradition
to the United States.8 The Colombian authorities ordered Garavito‐
Garcia’s extradition on October 28, 2013, but he appealed, “arguing,
among other things, that he should not be extradited because he was
in poor health.” 9 The Colombian authorities confirmed the
extradition order on December 26, 2013, but also “instructed the
Colombian Attorney General to obtain a medical report on the
feasibility of transferring Garavito‐Garcia before the Colombian
authorities surrendered him.”10 Garavito‐Garcia suffered a stroke
five days later.11
5 A‐31–32.
6 Government’s Br. 4–5 (internal quotation marks omitted).
7 Id. at 11–12.
8 United States v. Garavito‐Garcia, 90 F. Supp. 3d 288, 289 (S.D.N.Y. 2015).
9 Id.
10 Id.
11 Id.

-- 5 of 19 --

6
On February 14, 2014, before any medical report had issued,
the Colombian authorities authorized the United States to remove
Garavito‐Garcia.12 Less than two weeks later, before Garavito‐Garcia
had been removed, a Colombian government agency, the National
Institute of Legal Medicine and Forensic Science in Colombia (the
“National Institute”), provided its opinion that he would have to be
transported in a medical aircraft to ensure his safety.13 Upon receipt
of the National Institute’s report, the Colombian authorities
“suspended” the “availability” of Garavito‐Garcia until proper
arrangements could be made.14
“Notwithstanding the fact that th[is] delay was designed to
accommodate his health issues, Garavito‐Garcia then challenged his
continued detention in Colombia on the ground that he should have
been extradited sooner.”15 Garavito‐Garcia’s challenge was based on
Article 511 of Colombia’s Criminal Code, which provides that “[t]he
requested person will be released unconditionally by the Attorney
General, . . . if after a term of thirty (30) days from the day the
person was made available to the requesting State, the latter did not
move forward with his transfer.”16 The Colombian Attorney General
responded to Garavito‐Garcia’s challenge by explaining that Article
12 Id.
13 Id.
14 Id. (internal quotation marks omitted).
15 Id.
16 A‐51.

-- 6 of 19 --

7
511’s time limit had been suspended in accordance with the
National Institute’s report and the Colombian authorities’
confirmation of the extradition order.17 But Garavito‐Garcia
continued to press his argument, claiming in an April 2, 2014 letter
to the Colombian Attorney General that Article 511 contains “neither
explicit[ ] nor implicit[ ]” exceptions.18 “The Colombian Attorney
General was unpersuaded,” however, “and Garavito‐Garcia
remained in detention.” 19
On June 13, 2014, the National Institute issued a new report, in
which it informed the Colombian authorities that “the risk of
complications would be reasonably low if Garavito‐Garcia travelled
on a medical airplane with trained personnel,” which caused the
Colombian authorities to once again make Garavito‐Garcia available
for extradition to the United States.20 On July 22, 2014, Garavito‐
Garcia was transported in this manner to the Southern District of
New York, where he stood trial.21 On March 26, 2015, a jury
convicted him on all four counts,22 and on July 22, 2015, judgment
was entered.23 This timely appeal followed.
17 Garavito‐Garcia, 90 F. Supp. 2d at 290.
18 Id. (internal quotation marks omitted).
19 Id.
20 Id. (alterations and internal quotation marks omitted).
21 Id.
22 Government’s Br. 2.
23 A‐436.

-- 7 of 19 --

8
DISCUSSION
I. Extradition Treaty
We begin with Garavito‐Garcia’s first argument.
“We . . . review de novo the district court’s legal conclusions,
including those . . . involving the interpretation of a treaty.” 24
“[T]he United States and Colombia have had a formal
extradition treaty since 1982 . . . .” 25 Article 12(4) of that treaty reads
as follows: “If a warrant or order for the extradition of a person
sought has been issued by the competent authority and the person is
not removed from the territory of the Requested State within such
time as may be prescribed by its laws . . . , that person shall be set at
liberty . . . .”26 The Colombian law that “prescribe[s]” “such time” is
Article 511 of the Criminal Code. As noted, Article 511 provides that
“[t]he requested person will be released unconditionally by the
Attorney General, . . . if after a term of thirty (30) days from the day
the person was made available to the requesting State, the latter did
not move forward with his transfer.”27 Garavito‐Garcia argues that,
because he was not extradited within 30 days of being made
available to the United States, Colombia violated Article 511; and
24 Peterson v. Islamic Republic of Iran, 758 F.3d 185, 189 (2d Cir. 2014)
(internal quotation marks omitted), aff’d sub nom. Bank Markazi v. Peterson, 136 S.
Ct. 1310 (2016).
25 United States v. Suarez, 791 F.3d 363, 367 (2d Cir. 2015).
26 A‐64–65.
27 A‐51.

-- 8 of 19 --

9
because Article 12(4) incorporates Article 511 by reference, Colombia
violated the treaty as well.
This argument fails for at least two independent reasons. First,
as we have explained, “absent protest or objection by the offended
sovereign, a defendant has no standing to raise the violation of
international law as an issue. . . . These concerns apply equally
[when] a criminal defendant objects . . . based on the interpretation
of an extradition treaty . . . .” 28 Here, because “the Government of
Colombia [has not] first [made] an official protest,”29 Garavito‐
Garcia lacks standing to invoke the extradition treaty as a basis for
the dismissal of the indictment.
Garavito‐Garcia argues that this principle does not apply to
him, because it is only “in the absence of express language to the
contrary” that treaties “do not create privately enforceable rights,”
and “[h]ere, there is express and self‐executing language in the
Extradition Treaty itself mandating that the subject of extradition be
released within thirty days upon being made available.”30 But in so
arguing, Garavito‐Garcia conflates two distinct concepts: treaty
language “directly benefiting private persons,”31 which international
28 Suarez, 791 F.3d at 367 (alterations and internal quotation marks
omitted); accord United States v. Bout, 731 F.3d 233, 240 n.6 (2d Cir. 2013).
29 Suarez, 791 F.3d at 367.
30 Def.’s Reply Br. 14 n.4 (emphases in original) (internal quotation marks
omitted) (quoting Suarez, 791 F.3d at 367).
31 Medellin v. Texas, 552 U.S. 491, 506 n.3 (2008) (internal quotation marks
omitted).

-- 9 of 19 --

10
agreements regularly feature; and treaty language indicating “that
the intent of the treaty drafters” was that such benefits “could be
vindicated” through private enforcement,32 which is far less
common. The extradition treaty at issue in this case may contain
language meeting the former description, but Garavito‐Garcia has
not identified, nor can we locate, language meeting the latter.
Standing is therefore lacking.33
Second, international comity precludes us from considering
Garavito‐Garcia’s argument, because Colombia has already rejected
his contention that Article 511 prevented his extradition.34 It is well
established that, “although courts of the United States have
authority to determine . . . whether an accused should be extradited
from the United States, . . . our courts cannot second‐guess another
country’s grant of extradition to the United States.”35 Here, in order
to find that Colombia violated the extradition treaty, we would
necessarily have to disagree with the Colombian Attorney General’s
determination that no violation of Article 511 occurred. This we may
not do. The “deference” we must accord the Colombian Attorney
32 Suarez, 791 F.3d at 367 (internal quotation marks omitted).
33 See Medellin, 552 U.S. at 506 n.3 (“Even when treaties are self‐executing
in the sense that they create federal law, the background presumption is that
international agreements, even those directly benefiting private persons,
generally do not create private rights or provide for a private cause of action in
domestic courts.” (alterations and internal quotation marks omitted)).
34 See A‐140.
35 United States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002); accord Bout,
731 F.3d at 239–40.

-- 10 of 19 --

11
General’s determination is “essential to the maintenance of cordial
international relations. It could hardly promote harmony to request
a grant of extradition and then, after extradition is granted, have the
requesting nation take the stance that the extraditing nation was
wrong to grant the request.”36 For these reasons, we must reject
Garavito‐Garcia’s first argument.
II. Sufficiency of the Evidence
We turn next to Garavito‐Garcia’s argument that the evidence
at trial was insufficient to prove that he knowingly participated in
any of the conspiracies with which he was charged. Specifically,
Garavito‐Garcia argues that “[t]he record at trial is all but bereft of
any indication that [he] assented to, or even expressed interest in,
the aspects of the scheme involving weapons or importing narcotics
to the United States.” 37
“We review claims of insufficient evidence de novo,” but “[a]
defendant bears a heavy burden in seeking to overturn a conviction
on [these] grounds,” as we “will affirm if any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.”38 As concerns Garavito‐Garcia’s particular
insufficiency claim, “[t]he government may prove the defendant’s
36 Campbell, 300 F.3d at 209.
37 Def.’s Br. 30–31.
38 United States v. Allen, 788 F.3d 61, 66 (2d Cir. 2015) (internal quotation
marks omitted).

-- 11 of 19 --

12
knowing participation in a conspiracy through circumstantial
evidence,” which “may include, for example, a defendant’s
association with conspirators in furtherance of the conspiracy” or
“his presence at critical stages of the conspiracy that cannot be
explained by happenstance.” 39
Here, the Government introduced sufficient evidence from
which a rational trier of fact could have inferred Garavito‐Garcia’s
knowing participation in those aspects of the scheme that involved
weapons and importing narcotics into the United States. For
example, with respect to weapons, the Government introduced
evidence that, during a November 13, 2012 conversation with
Captain M’Bali, Garavito‐Garcia explained why the FARC wanted to
obtain anti‐aircraft missiles:
[T]he problem, Captain . . . see? [T]he problem is the
Americans. The gringos come to our country . . . . to
fumigate. . . . They start to fumigate the land so they
can’t cultivate. . . . They are damaging the soil . . . .
Damaging the soil, for many after . . . . Then they
turn, . . . turn it into, like, Mauritania, into a desert.
There was nothing. The Americans don’t care. So these
people [(the FARC)] want to show that they have power
to send them [(the Americans)] to hell because right
39 United States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014) (internal
quotation marks omitted).

-- 12 of 19 --

13
now they are talking about making peace with the
government. See?40
This explanation from Garavito‐Garcia took place in the
context of an extended discussion about anti‐aircraft missiles
between Garavito‐Garcia, M’Bali, a DEA confidential source, a
Colombian narcotics trafficker, and two Bissau‐Guinean narcotics
traffickers. 41 The discussion is but one example among many
instances in which Garavito‐Garcia made statements that a rational
trier of fact could interpret as evincing his knowing participation in
the weapons scheme. To choose just one additional example,
Garavito‐Garcia had earlier assured General Indjai on July 2, 2012
that, insofar as the potential weapons deal was concerned, the FARC
would “[p]ay for everything.” 42
There was also sufficient evidence from which a rational trier
of fact could have inferred Garavito‐Garcia’s knowing participation
in the aspect of the scheme that involved importing narcotics into
the United States. As the Government correctly points out, a rational
trier of fact could have determined “that Garavito‐Garcia believed
what the [DEA] sources told him, namely, that on the FARC’s
behalf, they planned to move tons of cocaine into the United
States . . . . Knowing this, [Garavito‐Garcia] went back and forth
across the Atlantic Ocean with the confidential sources, to broker a
40 SA‐338–39.
41 See SA‐326–53.
42 SA‐166.

-- 13 of 19 --

14
deal with his contacts in Guinea[‐]Bissau.”43 Garavito‐Garcia’s
second argument thus fails to convince.
III. Supplemental Jury Instruction
Garavito‐Garcia’s third argument is equally unavailing. He
argues that “[t]he district court’s initial ‘mere presence’ jury
instruction evidently resulted in confusion amongst the jurors, as
reflected in the jury note sent to the district court soon after
deliberations had commenced,” and that “[t]he district court’s
supplemental [‘]mere presence[’] instruction . . . failed to address the
source of the jury’s confusion, that is, whether proof of mere
acquiescence was enough.”44
Garavito‐Garcia’s argument relates to a note that the jury sent
to the District Court during deliberations, which read as follows:
I would like more clarification on conspiracy charges in
general. I am unclear whether someone’s presence
during a conversation without specific participation is
enough to convict someone of those charges. Is the only
way that someone could escape such a situation to
physically leave the room, or to specifically state their
lack of consent to the . . . . topic under discussion? I feel
unable to differentiate different situations in which
someone is implicated in a conspiracy or not.45
43 Government’s Br. 32.
44 Def.’s Br. 34.
45 A‐364.

-- 14 of 19 --

15
Contrary to Garavito‐Garcia’s assertion, the District Court
addressed the source of the jury’s confusion head‐on, through a
supplemental instruction that was both directly responsive and
objectively correct. After reiterating several general conspiracy
principles, the District Court instructed the jury as follows:
Because the burden of proof is always on the
Government, a defendant who is present where a
conspiratorial agreement is being planned by others
does not have any burden to show that he affirmatively
denied consent to the agreement or physically left the
room when it was being discussed; the burden is
always on the Government and mere presence without
participation in the unlawful plan is not sufficient to
meet that burden.46
The District Court thus clearly did not fail to “address the
question as to whether or not a person has to physically leave the
room in order to escape being considered a conspirator, or whether
or not a person has to explicitly state [his or her] lack of consent to
the discussion.” 47
IV. “Multiplicitous” Counts
Lastly, we consider Garavito‐Garcia’s argument that Count
Three of the indictment (conspiracy to provide material support to a
foreign terrorist organization, in violation of 18 U.S.C. §§ 2339B(a)(1)
46 A‐377.
47 Def.’s Br. 34–35.

-- 15 of 19 --

16
and (d)(1)) was “multiplicitous” of Count One (narcoterrorism
conspiracy, in violation of 21 U.S.C. § 960a), which resulted in
duplicative punishment prohibited by the Double Jeopardy Clause
of the Fifth Amendment. We conclude that it was not.
The Double Jeopardy Clause provides that “[n]o person shall
be subject for the same offence to be twice put in jeopardy of life or
limb.”48 This guarantee “prohibits multiple punishments for the
same offense.”49 Whether two offenses are in fact the same for
Double Jeopardy purposes is determined by reference to the so‐
called “same‐elements” test that the Supreme Court established in
Blockburger v. United States, 284 U.S. 299 (1932).50 This test “asks
whether each offense contains an element not contained in the other,
and provides that, if not, they are the same offen[s]e and double
jeopardy bars additional punishment.” 51 Critically, “[i]n applying
the Blockburger test, we are required to focus on the statutory
elements of each offense. If each statute requires proof of a fact that
the other does not, the Blockburger test is satisfied, even if the same
proof is used at trial to establish both crimes.” 52
48 U.S. C ONST . amend. V.
49 United States v. Weingarten, 713 F.3d 704, 708 (2d Cir. 2013).
50 See id.
51 Id. (internal quotation marks omitted).
52 United States v. Biasucci, 786 F.2d 504, 516 (2d Cir. 1986) (emphasis in
original) (citations omitted); accord Thigpen v. Roberts, 468 U.S. 27, 39 (1984)
(“[T]he test focuses on the statutory elements of the offense. If each requires
proof of a fact that the other does not, the Blockburger test is satisfied,

-- 16 of 19 --

17
Here, it is clear that § 960a and § 2339B each require proof of a
fact that the other does not. Section 960a requires the Government to
prove that the defendant engaged in certain conduct “knowing or
intending to provide, directly or indirectly, anything of pecuniary
value to any person or organization that has engaged or engages in
terrorist activity (as defined in section 1182(a)(3)(B) of Title 8) or
terrorism (as defined in section 2656f(d)(2) of Title 22).”53 This means
that, in every prosecution under § 960a, the Government is required
to prove that the person or organization to which the defendant
provided a pecuniary benefit has engaged in terrorist activity or
terrorism.
But this requirement does not apply to § 2339B, which
criminalizes “knowingly provid[ing] material support or resources
to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do
so.” 54 For purposes of § 2339B, “the term ‘terrorist organization’
means an organization designated as a terrorist organization under
section 219 of the Immigration and Nationality Act.”55 Accordingly,
in every prosecution under § 2339B, the Government is required to
prove that the foreign terrorist organization to which the defendant
provided material support has been designated as such by the
notwithstanding a substantial overlap in the proof offered to establish the
crimes.” (internal quotation marks omitted)).
53 21 U.S.C. § 960a(a) (emphasis supplied).
54 18 U.S.C. § 2339B(a)(1) (emphasis supplied).
55 Id. § 2339B(g)(6).

-- 17 of 19 --

18
Secretary of State.56 It is not, however, required to prove that the
organization has engaged in terrorist activity or terrorism. Indeed,
once the Secretary’s designation becomes effective, “a defendant in a
criminal action . . . shall not be permitted to raise any question
concerning the validity of the issuance of such designation as a
defense or an objection at any trial or hearing.”57
Additionally, just as § 960a’s terrorist‐activity‐or‐terrorism
requirement is not required by § 2339B, so too is § 2339B’s
designation requirement not required by § 960a. In other words, in
no prosecution under § 960a is the Government required to prove
that the person or organization to which the defendant provided a
pecuniary benefit has been designated as a terrorist organization.
Therefore, because § 960a and § 2339B each require proof of a
fact that the other does not, duplicative punishment prohibited by
the Double Jeopardy Clause of the Fifth Amendment was not
imposed on Garavito‐Garcia.58
56 See 8 U.S.C. § 1189; cf. United States v. Chandia, 514 F.3d 365, 372 (4th Cir.
2008) (“Section 2339B requires proof that [a defendant] provided material
support to an organization designated as a foreign terrorist organization.”);
United States v. Ahmed, 94 F. Supp. 3d 394, 422 (E.D.N.Y. 2015) (“The Government
must . . . prove, beyond a reasonable doubt[,] that . . . [the organization to which
the defendant provided material support] was designated as [a] ‘foreign terrorist
organization’ . . . .”).
57 8 U.S.C. § 1189(a)(8).
58 Cf. United States v. Mohammed, 693 F.3d 192, 199 (D.C. Cir. 2012) (“[T]he
premise that § 960a is redundant [as to statutes such as § 2339B] is suspect.
Congress could have reasonably determined that international drug trafficking

-- 18 of 19 --

19
CONCLUSION
We have considered all of Garavito‐Garcia’s arguments on
appeal and found them to be without merit. The July 22, 2015
judgment of the District Court is therefore AFFIRMED.
combined with the intent to support a terrorist is a different crime—more
blameworthy, more dangerous, or both—than drug trafficking overseas and
material support of terrorism committed separately. Or Congress could have
decided that the ability to charge one crime instead of two was a valuable,
perhaps necessary, tool for prosecutors that warranted creating a new crime. In
any event, . . . [r]edundancies across statutes are not unusual events in drafting,
and courts must give effect to overlapping statutes unless there is positive
repugnancy between them.” (internal quotation marks omitted)).

-- 19 of 19 --