Appeal from the United States District Courtfor the Central District of CaliforniaAudrey B. Collins, District Judge, PresidingSubmitted February 4, 1998*Pasadena, CaliforniaFiled June 23, 1998Before: J. Clifford Wallace, Stephen S. Trott, andMichael Daly Hawkins, Circuit Judges.Opinion by Judge Trott
______________________COUNSEL Michael Tanaka, Deputy Federal Public Defender, Los Ange-les, California, for the defendant-appellant.David R. Fields, Assistant United States Attorney, Los Ange-les, California, for the plaintiff-appellee.
_____________________________OPINION TROTT, Circuit Judge:Dragisa Lazarevich was extradited from the Netherlands in1996 to face federal charges in a criminal complaint involvingpassport fraud. He appeals the sentence imposed after hiscriminal conviction, arguing that it constitutes punishment fora non-extradited offense in violation of the extradition treatybetween the United States and the Netherlands. He alsoappeals the district court's denial of his motion to dismiss theindictment due to outrageous government conduct. We affirmon both grounds.I. FactsA.Lazarevich abducted his children in 1989 after a Californiacourt awarded his wife primary custody. He took the childrenfrom their home in California to Serbia and refused to releasethem to their mother for six years. In 1995, he finally releasedthem to American officials, and they were returned to theirmother.Lazarevich was extradited to the United States from theNetherlands in 1996. Dutch officials had apprehended himwhile he was travelling in the Netherlands. Dutch officialsgranted extradition on charges that Lazarevich had made falsestatements on the passport applications of his two children.They refused extradition for charges of child abduction on theground that Lazarevich had already been tried and convictedon similar charges by the Court of Belgrade in 1992.Upon his return to the United States, Lazarevich wasindicted for making false statements on passport applicationsin violation of 18 U.S.C. S 1542. He was convicted of makingfalse statements on the passport application of one of his chil-dren.The district court sentenced Lazarevich to 24 monthsimprisonment and three years of supervised release. The dis-trict judge arrived at that sentence by departing upward fromLazarevich's base offense level, which was six, to an offenselevel of fourteen. The judge found that various aggravatingcircumstances justified the increase.Pursuant to United States Sentencing Guideline (U.S.S.G.)S 5K2.9, the court departed upwards after finding, by a pre-ponderance of the evidence, that the offense was committedto facilitate another offense: the abduction of Lazarevich'schildren. Pursuant to U.S.S.G. S 4A1.3(a), the district judgeincreased Lazarevich's criminal history category from I to II.She based that increase on Lazarevich's 1992 conviction forchild abduction in the Court of Belgrade.In total, the upward departure and increase in criminal his-tory category produced a sentencing range of 18-24 months.The judge sentenced Lazarevich to the maximum of thatrange.Lazarevich appeals his sentence. He argues that the sen-tence punishes him for abducting his children and thereforeviolates the extradition treaty between the United States andthe Netherlands. The treaty prohibits punishment for non-extradited offenses.B.Lazarevich also appeals the district court's denial of hismotion to dismiss the indictment for outrageous governmentconduct. He claims the court could not legitimately deny hismotion without conducting an evidentiary hearing. He alsoclaims the district court erred when it determined that he hadfailed to demonstrate a factual basis for his motion.II. DiscussionA.We review application of the Sentencing Guidelines to thefacts of a case for abuse of discretion, and we review legalinterpretation of the Guidelines de novo. United States v.Aguilar-Ayala, 120 F.3d 176, 177-78 (9th Cir. 1997). Inter-pretations of extradition treaties also receive de novo review.United States v. Merit, 962 F.2d 917, 919 (9th Cir. 1992).[1] The Extradition Treaty between the United States andthe Netherlands incorporates the doctrine of specialty. It pro-vides that a person "extradited under this Treaty shall not bedetained, tried, or punished in the territory of the RequestingState for an offense other than that for which extradition hasbeen granted." Netherlands--Extradition, Art. XV, June 24,1980, U.S.-Neth., 35 U.S.T. 1334, 1342 (the Treaty). Thedoctrine of specialty embodies the principle of internationalcomity: "to protect its own citizens in prosecutions abroad,the United States guarantees that it will honor limitationsplaced on prosecutions in the United States." United States v.Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994) (citation omit-ted). Protection of the doctrine of specialty "exists only to theextent that the surrendering country wishes." SEC v. Euro-bond Exchange, Ltd., 13 F.3d 1334, 1337 (9th Cir. 1993)(quoting United States v. Najohn, 785 F.2d 1420, 1422 (9thCir. 1986)).[2] Lazarevich was neither detained nor tried on childabduction charges. The question here is whether he was pun-ished for child abduction. Based on his abduction of the chil-dren, Lazarevich's base offense level and criminal historycategory were increased. These increases led in turn to a lon-ger sentence. Thus, Lazarevich argues, he was punished forhis abduction of the children in violation of the Treaty.[3] We reject Lazarevich's argument for the following rea-sons. The Supreme Court has held that the "use of evidenceof related criminal conduct to enhance a defendant's sentencefor a separate crime within the authorized statutory limitsdoes not constitute punishment." Witte v. United States, 515U.S. 389, 399 (1995); see United States v. Watts, 519 U.S.148, 117 S. Ct. 633, 634, 638 (1997) (overturning two NinthCircuit cases that held "sentencing courts could not considerconduct of the defendants underlying charges of which theyhad been acquitted"). While both Supreme Court cases dealtwith double jeopardy concerns, their holdings are relevant tothis case as well.[4] Lazarevich asserts that the fact that this case involvesextradition removes it from the reach of the Supreme Court'sholdings in Witte and Watts. The upward departure, he argues,"violated the spirit and mutual understanding " of the extradi-tion agreement and treaty. The agreement and the Treaty weremade, however, within an historical and precedential context.That context includes the long-standing practice of UnitedStates courts of considering relevant, uncharged evidence atsentencing.In Witte, the Supreme Court examined the history of courts'use of related, criminal conduct in sentencing -- a history dat-ing back to before the founding of the country. Witte, 515U.S. at 397-98. The Supreme Court relied on that historywhen it held that the Due Process Clause did not "require thatcourts . . . abandon their age-old practice of seeking informa-tion from out-of-court sources to guide their judgment towarda more enlightened and just sentence." Id. at 398 (quotingWilliams v. New York,
337 U.S. 241, 250
-51 (1949)). TheSupreme Court also cited that history when it explained thatthe Sentencing Guidelines did not change its holdings regard-ing the consideration of relevant, criminal behavior. Id. at398-99, 402. The Court explained that the Sentencing Guide-lines "are designed to channel the sentencing discretion of thedistrict courts" but that "[r]egardless of whether particularconduct is taken into account by rule or as an act of discre-tion, the defendant is still being punished only for the offenseof conviction." Id. at 402.[5] Lazarevich argues that no "technical gloss from the[Sentencing Guideline's] principle of relevant conduct"should overcome the plain meaning of "punishment."Lazarevich cites two cases. The first, Sumitomo Shoji, Amer-ica, Inc. v. Avagliano,
457 U.S. 176, 180
(1982) (quotingMaximov v. United States,
373 U.S. 49, 54
(1963)), states thatplain language of a treaty must be followed unless a plain lan-guage interpretation "effects a result inconsistent with theintent or expectations of" the signatory nations. If the plainmeaning of punishment is interpreted to preclude consider-ation of other criminal behavior in sentencing, that interpreta-tion would seem to "effect a result inconsistent with theintent" of at least the United States, given its long history ofconsidering such conduct. The second case cited byLazarevich held that federal, not local or state law, should beused to guide treaty interpretation. See De Geofrey v. Riggs,
133 U.S. 258
, 271 (1890). It does not support Lazarevich'scontentions.[6] Given the long history of consideration of relevant evi-dence -- including other criminal behavior, the SentencingGuidelines' clear mandate of such consideration, andSupreme Court precedent, we conclude that the Treaty and theextradition agreement contemplated consideration of relevantoffenses. In pre-Witte cases, two of our sister circuits drewsimilar conclusions. See Leighnor v. Turner, 884 F.2d 385,390 (8th Cir. 1989) (holding that an increase in parole releaseguideline range due to non-extradited offense did not violatethe doctrine of specialty); United States v. Davis, 954 F.2d182, 187 n.2 (4th Cir. 1992) (stating in dicta that "the fact thatthe trial court potentially considered the defendant's prior ille-gal accounting practices in imposing a sentence does notmean that [the defendant] was punished for those offenses.")Furthermore, protection of the doctrine of specialty "existsonly to the extent that the surrendering country wishes."Eurobond Exchange, Ltd., 13 F.3d at 1337 (quoting Najohn,785 F.2d at 1422). We can find no evidence in the record thatthe Netherlands wished the doctrine to protect Lazarevichfrom the upward departure. Thus, we conclude the districtcourt was within its discretion when it increased Lazarevich'sbase offense level, and we affirm.B.We review de novo the district judge's decision to denyMr. Lazarevich's motion to dismiss the indictment based onoutrageous government conduct. See United States v.Edmonds, 103 F.3d 822, 825 (9th Cir. 1996). We review forclear error the district judge's findings of fact with regard tothe motion to dismiss the indictment. United States v.Armenta, 69 F.3d 304, 306 (9th Cir. 1995).While, as Lazarevich argues, an evidentiary hearing mighthave helped resolve conflicting statements of the UnitedStates and Serbian officials, such a hearing would haverequired another continuance and further delay. Numerouscontinuances had previously been granted. Lazarevich hadover seven months to prepare for the hearing on the motion.The district judge was well within her discretion to deny thecontinuance requested -- and, in turn, the evidentiary hearing.See Villafuerte v. Stewart, 111 F.3d 616, 633 (9th Cir. 1997).[7] The district court properly denied Lazarevich's motionto dismiss the indictment for outrageous government conduct.Lazarevich does not contest the fact that he bore the burdenof demonstrating a factual basis for his motion to dismiss.Finding the evidence in equipoise, the district judge wasrequired to rule against Lazarevich. Her finding was notclearly erroneous and her holding was not improper.AFFIRMED. the end