# Gomez v. MDC Brooklyn Warden

> District Court, E.D. New York · February 11, 2025

URL: https://www.frixlaw.com/law-library/cases/10798197

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 11, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ee RRR RRR SES Re RM mee ee
MARIO ENRIQUE LALAMA GOMEZ,
Petitioner,
. NOT FOR PUBLICATION
ragalnst- MEMORANDUM & ORDER
24-cv-7850 (CBA)
UNITED STATES OF AMERICA,
Respondent.
eee en ee re ee ee een
AMON, United States District Judge:
Petitioner Mario Enrique Lalama Gomez (“Lalama Gomez”) was ordered extradited to
Ecuador pursuant’ to 18 U.S.C, § 3184 by the Honorable Lara K. Eshkenazi, United States
Magistrate Judge. (ECF Docket Entry (“D.E.”) # 1 Ex. 2 (“M&O”) 1.'! Before me is Lalama
Gomez’s habeas corpus motion pursuant to 18 U.S.C. § 2241. (D.E. #1 (“Pet. Mem.”).) Lalama
Gomez asks me to invalidate Magistrate Judge Eshkenazi’s order and block his extradition.
Having reviewed Magistrate Judge Eshkenazi’s determination, [ find no error. Accordingly, I
DENY Lalama Gomez’s petition.
BACKGROUND
On July 10, 2024, the Government filed a complaint requesting that Lalama Gomez, be
extradited to Ecuador. (Id.) That complaint alleged that Lalama Gomez, a dual American and
Ecuadorian citizen, had repeatedly “obscenely touched] {the} private parts, breasts, and vagina”
of a 10-year-old Ecuadorian child between August 2016 and September 2017. (Id. 1-2.)
On October 8, 2024, Magistrate Judge Eshkenazi held a hearing on the Government’s
extradition request. (Id. 2.) She had to determine whether three conditions were met: (1) “whether
a valid treaty exist[ed];” (2) “whether the crime charged [was] covered by the relevant treaty;” and

' This decision is reported at Matter of Extradition of LalamaGomez, _ F, Supp. 3d_, 2024 WL 4646959 (E.D.N.Y.
Nov. 1, 2024).

(3) “whether the evidence marshaled in support of the complaint for extradition [was] sufficient
under the applicable standard of proof,” which is probable cause. Cheung v. United States, 213
F.3d 82, 88 (2d Cir. 2000). At that hearing, Magistrate Eshkenazi considered, among other
evidence, submissions from the United States and Ecuadorian governments attesting that Lalama
Gomez’s alleged conduct constituted an extraditable offense and statements from the alleged
victim and her mother describing that conduct. (M&O 2-3, 14-15.)
On November 1, 2024, Magistrate Judge Eshkenazi determined that all three conditions
were met, “certifie[d] the extradition” of Lalama Gomez, and “order[ed] Lalama Gomez to remain
in the custody of the United States Marshal pending further decision on extradition and surrender
by the Secretary of State.” (Id. 17.) On November 12, 2024, Lalama Gomez filed a petition
seeking a writ of habeas corpus, requesting that I prevent his extradition. (Pet. Mem.)
STANDARD OF REVIEW
An extradition order “may only be reviewed by a petition for a writ of habeas corpus under
28 U.S.C. § 2241.” Skaftouros v. United States, 667 F.3d 144, 157 (2d Cir. 2011). The reviewing
court may only consider (1) “whether the magistrate had jurisdiction,” (2) “whether the offense
charged is within the treaty,” and (3) “whether there was any evidence warranting the finding that
there was reasonable ground to believe the accused guilty.” Id. (quoting Fernandez v, Phillips, 268
U.S. 311, 312 (1925)). The petitioner has the burden of proving by a preponderance of the
evidence that the extradition order is not consistent with law. Id. at 158; Bisram v. United States, □
777 F. App’x 563, 565-66 (2d Cir. 2019).

DISCUSSION
Lalama Gomez does not dispute that Magistrate Judge Eshkenazi had jurisdiction to decide
the question of whether he could be extradited to Ecuador. (Pet. Mem. 8.) So I address the

remaining two questions set out in Skaftouros, as well as Lalama Gomez’s miscellaneous
arguments, .
I. Sexual Abuse Is Covered by the Relevant Extradition Treaty
Extradition treaties are to be “liberally, not strictly, construed.” Factor v. Laubenheimer,
290 U.S. 276, 303 (1933); Skaftouros, 667 F.3d at 155-56 (applying this principle). Ultimately, it
is a court’s “responsibility to give the specific words of [a] treaty a meaning consistent with the
shared expectations of the contracting parties.” Air France v. Saks, 470 U.S. 392, 399 (1985); see
Sumitomi Shoji Am., Inc. v. Avagliano, 457 U.S, 176, 184 (1982) (“Our role is limited to giving
effect to the intent of the Treaty parties.”).
Lalama Gomez argues that his alleged offense is not covered by the United States’
extradition treaty with Ecuador. He acknowledges that the treaty enumerates rape as an
extraditable offense, but argues that it does not encompass sexual abuse, the offetise with which
he is charged in Ecuador. (Pet. Mem. 10-11.) Lalama Gomez observes that Ecuadorian law
distinguishes between the two offenses: it defines rape as the commission of “carnal access” via
penetration, whereas it defines sexual abuse as the commission of nonconsensual sexual acts
“without there being penetration or carnal access.” (D.E. # t Ex. 5 (“Crim. Code”) art. 170-71.)
Lalama Gomez’s argument fails for two reasons. First, as Magistrate Judge Eshkenazi
noted, even if an offense is not enumerated in an extradition treaty, extradition is permissible if
“the underlying conduct constitutes an extraditable offense.” (M&O 11 (quoting In re Extradition
of Handonovic, 829 F. Supp. 2d 979, 989 (D. Or. 2011)); see Sacirbey v. Guecione, 2006 WL
2585561, at *8 (S.D.N.Y. Sept. 7, 2006) (“While abuse of authority is not specifically enumerated
in the Treaty, it need not be to qualify as an extraditable offense, so long as [it] is sufficiently
equivalent to one or more of the twelve categories [of offenses] listed... .”), rev’d_on other

grounds, 589 F.3d 52 (2d Cir. 2009). The 1873 United States-Ecuador treaty provides for
extradition for “[t]he crime of rape,” and the 1941 supplementary treaty provides for extradition
for attempted rape. (D.E. # 1 Ex. 3 (“Treaty”) 3, 6.) Under Ecuadorian law, rape may be
committed with “the introduction, vaginally, or anally, of objects, fingers, or organs other than the
virile member, to a person of either sex.” (Crim. Code. art. 171.) The alleged conduct in this case
includes Lalama Gomez “putting his fingers in [the victim’s] anus and vagina.” (M&O 11-12.)
Thus, even though Lalama Gomez is not being extradited to Ecuador to face trial for rape, I agree
with Magistrate Judge Eshkenazi that his conduct is sufficiently equivalent to that offense (or, at
the very least, an attempt to commit that offense), making extradition permissible,
Second, the United States-Ecuador extradition treaty must be construed consistent with the
intent of its signatories, The Supreme Court has observed in dicta that “[t]he clear import of treaty
language controls unless ‘application of the words of the treaty according to their obvious meaning
effects a result inconsistent with the intent or expectations of its signatories.” Avagliano, 457
U.S. at 180 (quoting Maximov v. United States, 373 U.S. 49, 54 (1963)); see Bruyea v. United
States, 174 Fed. Cl. 238, 242 (Fed. Cl. 2024) (noting that while treaty interpretation begins with
the text, “there is a notable difference from [the interpretation of] other legal instruments: courts
are encouraged to consider a treaty’s purpose, as well as extrinsic evidence of the intent of the
parties to the treaty”). In United States v. Lazarevich, the Ninth Circuit applied this principle. 147
F.3d 1061 (9th Cir. 1998). There, the question was whether a defendant extradited from the
Netherlands could receive a sentencing enhancement for conduct not covered by the United States-
Netherlands extradition treaty, even though that treaty provided that an extradited person could
not be “punished . . . for an offense other than that for which extradition has been granted.” Id, at
1063 (citation omitted). Citing Avagliano, the court determined that even if “the plain meaning of

punishment [were] interpreted to preclude consideration of other criminal behavior in sentencing,”
such an interpretation “would seem to effect a result inconsistent with the intent of at least the
United States” and would thus be impermissible. Id. at 1064 (quotation omitted).
In determining the intent and expectations of the signatories in this case, I consider the “the
postratification understanding of the contracting parties” to this treaty. Zicherman v. Korean Air
Lines Co., Ltd., 516 U.S. 217, 226 (1996). “[B]oth the United States Department of State and
National Court of Justice in Ecuador” have attested that in their view, sexual abuse is covered by
the treaty’s rape provision. (M&O 10.) Accordingly, it would undermine the expectations of both
signatories to the United States-Ecuador extradition treaty to find that the treaty does not provide
for extradition in cases of sexual abuse. These expectations are not merely theoretical; the United
States and Ecuador have successfully sought extradition to Ecuador for sexual abuse under the
same provision at issue in this case. See Cordero-Rezabala v. United States, No. 24-4010 (BRM),
2024 WL 1673366, at *4 (D.N.J. April 18, 2024),
Lalama Gomez complains that Magistrate Judge Eshkenazi “refused to heed” an
Ecuadorian attorney’s affidavit which attested that extradition was inappropriate because rape and
sexual abuse were discrete offenses and Lalama Gomez could only be tried for the former under
Ecuadorian law. (Pet. Mem. 12-13.) But Magistrate Judge Eshkenazi correctly declined to
consider this evidence because Lalama Gomez was only permitted to produce evidence which
“explain[ed] rather than contradict[ed] the demanding country’s proof.” Shapiro y. Ferrandina,
478 F.2d 894, 905 (2d Cir. 1973) (quoting United States ex rel, Petrushansky v. Marasco, 325 F.2d
562, 567 (2d Cir. 1963)). Moreover, even accounting for the affidavit, the proper inquiry is

5 .

whether sexual abuse, the crime for which Lalama Gomez, will be tried, is encompassed by the
extradition treaty’s rape provision. For the reasons I have set out above, I find that it is?
II. Evidence Supports Magistrate Judge Eshkenazi’s Finding of Probable Cause
Probable cause exists for extradition when the “evidence presented supports a reasonable
belief” that the fugitive is “guilty of the crimes charged.” Austin v. Healey, 5 F.3d 598, 605 (2d
Cir, 1993) (cleaned up). Extradition hearings are not bound by the Federal Rules of Evidence;
“unsworn statements of absent witnesses” are admissible in these proceedings. Collins v. Loisel,
259 U.S. 309, 317 (1922); see Melia v. United States, 667 F.2d 300, 302 (2d Cir. 1981). The
evidence adduced at these hearings must simply be “reasonably trustworthy.” United States v.
Howard, 489 F.3d 484, 491 (2d Cir. 2007) (quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d
Cir, 2006)). The fugitive “may be permitted to offer explanatory testimony, but may not offer
proof which contradicts that of the demanding country.” Bisram, 777 F. App’x at 565 (quoting
Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984)),
On habeas review, the district court must simply consider whether “‘any evidence’”
supports the magistrate judge’s ruling, a standard which is “deferential to the magistrate judge’s
ruling.” Leon Heras v. Warden, Metro, Det. Ctr., Brooklyn, No. 1:23-cv-5057 (EK), 2023 WL
8473838, at *2 (E.D.N.Y, Dec. 7, 2023) (quoting Bisram, 777 F. App’x at 567). One area in which
the district court must be particularly deferential is credibility; it is “solely within the province of
the extradition magistrate” judge to decide how to assess the credibility of evidence. Gil v, Imundi,
747 Supp. 1028, 1041 (S.D.N.Y. 1990) (quoting Quinn v. Robinson, 783 F.2d 776, 815-16 (9th

2 Petitioner’s argument that the rule of specialty “show[s] that the charged offense is not substantially analogous to
the extraditable offense” (Pet. Mem. 15), is unavailing. The rule of specialty “generally requires a country seeking
extradition to adhere to any limitations placed on prosecution by the surrendering country” and “is typically applied
in cases where the fugitive is tried for a crime not enumerated in the applicable extradition treaty or agreement.”
United States v. Suarez, 791 F.3d 363, 366 (2d Cir, 2015) (cleaned up). To apply the rule of specialty presupposes
that sexual abuse is not covered by the treaty. For the reasons set out above, I find that it is.

Cir. 1986)). The magistrate judge may choose not to “go beyond the face of the government’s
affidavits for purposes of determining credibility or reliability.” Id.; see Shapiro, 478 F.2d at 905
(“The judge’s refusal to examine the credibility of the testimony and statements included in the
translated material was clearly proper, since the declarants were not before him... Such a contest,
the judge permissibly ruled, should properly await trial in [the country where the fugitive will face
trial].”).
In determining that probable cause existed to extradite Lalama Gomez for sexual abuse,
Magistrate Judge Eshkenazi considered more than 200 pages of “clear and detailed allegations”
set out in Ecuador’s submissions, (M&O 14.) Those allegations included statements by the victim
and her mother, as well as a psychological report drafted by Ecuadorian authorities. (Id.)
Ecuadorian authorities alleged that “from August 2016 through September 2017, Lalama Gomez
sexually abused the Victim and threatened to kill the Victim’s [m]other and her brothers if the
Victim told anyone about the abuse,” which included Lalama Gomez “enter[ing] the Victim’s
room, obscenely touch[ing] her breasts and vagina, and kiss[ing] her while he masturbated.” (1d.)
Lalama Gomez argues that Magistrate Judge Eshkenazi erred in finding probable cause
because there is “no evidence corroborating [the victim’s] testimony,” because the victim’s mother
lacked credibility since she was once Lalama Gomez’s girlfriend, and because “Ecuadorian
authorities’ forensic psychological report... fails to categorically link [the victim’s] psychological
issues to the alleged sexual abuse.” (Pet. Mem. 17.) Lalama Gomez further claims that the
victim’s “hymen is intact, refuting any possibility of [r]ape” and cites a New York state court case
which found a victim’s uncorroborated allegations insufficient to sustain a rape conviction. (Id.
17-18.) Finally, Lalama Gomez argues that Magistrate Judge Eshkenazi erred by “refus[ing] to
hear [Lalama Gomez]’s testimony” — which, Lalama Gomez says, would have been that the

victim’s accusations were “nothing more than revenge against {Lalama Gomez] for leaving the
Victim’s Mother.” (Id. 18.)
These arguments are unpersuasive. First, the victim’s statements are corroborated by the
statements of the victim’s mother and the Ecuadorian authorities’ psychological report. Magistrate
Judge Eshkenazi properly prohibited Lalama Gomez from testifying about the purported lack of
credibility of the victim’s mother; statements which “only pose a conflict of credibility” should
“properly await trial.” Shapiro, 478 F.2d at 905. As I have noted above, it is not my place to
second-guess Magistrate Judge Eshkenazi’s decision to credit the victim’s mother’s statements.
Second, Lalama Gomez’s argument that “courts and juries in this country have often been skeptical
of victims? uncorroborated allegations of sexual abuse,” (M&O 17-18), misunderstands the inquiry
at hand. Magistrate Judge Eshkenazi did not have to decide whether the evidence at hand sufficed
to convict him; she only had to decide whether it sufficed to constitute probable cause. And my
role is simply to determine whether there is any evidence that supports her determination. I find
that there is.

Ill. Lalama Gomez’s Other Arguments Fail
A. There Is No Issue of Dual Criminality
Lalama Gomez argues that the doctrine of dual criminality should bar extradition in this
case. Dual criminality is a requirement contained within some extradition treaties which requires
that “the offense for which the fugitive is being extradited must be punishable under [both
countries’] criminal law.” Lo Duca v. United States, 93 F.3d 1100, 1111 (2d Cir. 1996), For dual
criminality to exist, the extraditable offense must be “substantially analogous” to some offense in
the extraditing country. Cordero-Rezabala, 2024 WL 1673366, at *3. Lalama Gomez claims that

sexual abuse in Ecuador is not substantially analogous to any offense in the United States. (Pet.
Mem.
Magistrate Judge Eshkenazi first observed that Ecuador’s extradition treaty with the United
States only requires dual criminality analysis for certain offenses, and rape — the offense in the
treaty that Magistrate Judge Eshkenazi deemed to encompass sexual abuse — is not one of them.
(M&O 12 n.2.) Moreover, even if a dual criminality analysis were necessary, Magistrate □□□□□
Eshkenazi correctly noted that Defendant could have been successfully charged under a variety of
federal and state statutes. The alleged conduct qualifies as knowing engagement in “a sexual act
with another person without that person’s consent,” 18 U.S.C. § 2242, or “subject[ing] another
person [under the age of 14] to sexual contact,” New York Penal Law § 130.60. Thus, there is
thus no issue of dual criminality.
B. There Is No Applicable Exception to the Rule of Non-Inquiry
Lalama Gomez argues that Magistrate Judge Eshkenazi “erred by not applying an
exception to the doctrine of non-inquiry and other humanitarian considerations.” (Pet. Mem. 18)
(cleaned up). The doctrine of non-inquiry is a “firmly established principle that precludes courts
from examining the procedures or treatment awaiting the surrendered fugitive in the requested
jurisdiction” on the basis that the executive branch is better suited to make this assessment. In re
Extradition of Mujagic, 990 F. Supp. 2d 207, 227-28 (N.D.N.Y. 2013). In dicta in one case, the
Second Circuit “imagine[d]” that there might be “procedures or punishment so antipathetic to a
federal court’s sense of decency as to require reexamination of [this] principle,” Gallina v. Fraser,

3 In his briefing, Lalama Gomez seems to conflate two inquiries: whether sexual abuse is an extraditable offense under
the United States-Ecuador extradition treaty and whether dual criminality is met. (See Pet. Mem. 11 (“The charged
offense of sexual abuse does not fall within the scope of the Treaty, Critically, while strict congruity of offenses is
not necessary to meet the test of [dual] criminality, the offenses of the two countries must be substantially analogous.”)
(cleaned up).) Because dual criminality is entirely separate from whether the offense falls within the scope of an
i extradition treaty — the former requires an analysis of the extraditing country’s criminal laws, whereas the latter simply
requires an analysis of the treaty -- I have addressed the two inquires separately,

278 F.2d 77, 79 (2d Cir. 1960), but Lalama Gomez cites no case in which any court has found this
theoretical exception to apply, As far as I am aware, no such case exists. See Leon Heras, 2023
WL 8473838, at *4 (“[T]he Gallina court’s posited exception to non-inquiry has never been
applied to prevent federal certification of extradition.”) (citations omitted).
Lalama Gomez alleges that “Ecuador’s penitential system has been suffering a chronic
crisis,” including non-functional health services, violence, and torture. (Pet. Mem. 18-21.)
Moreover, Lalama Gomez alleges that given that he will be extradited for a sex crime, is an
American citizen, and has various health concerns, he will be particularly vulnerable. (id, 20-21.)
Magistrate Judge Eshkenazi decided that these alleged conditions were not so extreme as to take
the unprecedented step of ignoring the doctrine of non-inquiry (M&O 16-17), and I agree. Just
last year, Judge Komitee reached the same conclusion regarding the Ecuadorian system. See Leon
Heras, 2023 WL 8473838, at *4 (“Although the Court is not insensitive to these disquieting issues
[in Ecuador], such humanitarian concerns are generally within the province of the Secretary of
State.”)}. Magistrate Judge Eshkenazi did not err by refusing to make an exception to the rule of
non-inquiry.
C. Lalama Gomez Is Not Entitled to Serve a Potential Sentence in the United
States
Magistrate Judge Eshkenazi did not err by declining to consider Lalama Gomez’s request
to “mak[e] [the] order of extradition conditional upon Ecuador returning Mr. Gomez to the United
States to serve his prison sentence if convicted.” See Inter-American Convention on Serving
Criminal Sentences Abroad, June 9, 1993, O.A.S.T.S. No. 76 (“IAC”).* Although the treaty’s

ocataiable at hitps:/Avww.oas.orp/juridico/english/treaties/a-57.html and S, Treaty Doc. No. 104-35, 1995 WL

10

terms would require Lalama Gomez’s consent in order for him to be transferred to the United
States to serve his sentence, they do not entitle Lalama Gomez to such a transfer. JAC art. V.
CONCLUSION ©

For these reasons, the Court DENIES Lalama Gomez’s petition.
SO ORDERED.
Dated: February /5 , 2025 - _
Brooklyn, New York s/Carol Bagley Amon -
Carol Bagley Xn /) J
United States Digtrict Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10798197. Public record. Not legal advice.