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In The Matter of The Extradition of Manuel Antonio Noriega - Document No. 4
In The Matter of The Extradition of Manuel Antonio Noriega - Document No. 4
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On July 17, 2007, the United States filed an initial complaint for the extradition of Manuel
Antonio Noriega, at the request of the Government of the Republic of France, pursuant to the
Extradition Treaty between the United States and the Republic of France. In this matter, the United
The Republic of France has submitted a formal request for Noriega’s arrest, extradition and
statute, this Court must thereafter hold a hearing to consider the evidence of criminality presented
by the Republic of France and to determine whether it is “sufficient to sustain the charge under the
provisions of the proper treaty or convention.” 18 U.S.C. § 3184. If the Court finds the evidence
sufficient, it certifies the extradition to the Secretary of State, who decides whether to surrender the
fugitive.1
engaging in financial transactions with the proceeds of illegal drug trafficking, an offense that
corresponds to money laundering under United States law (see 18 U.S.C. §§ 1956 and 1957).
Noriega is presently serving a sentence in the United States following his conviction in 1992 on drug
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After the court has completed its “limited inquiry, the Secretary of State conducts an independent review of the
case to determine whether to issue a warrant of surrender.” Martin v. Warden, Atlanta Pen, 993 F.2d 824, 829 (11th Cir.
1993). “The Secretary exercises broad discretion and may properly consider myriad factors affecting both the individual
defendant as well as foreign relations, which the extradition magistrate may not.” Id.
Dockets.Justia.com
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trafficking charges in the Southern District of Florida. According to the French judgment, Noriega
first deposited the proceeds from his extensive involvement in cocaine trafficking into bank accounts
in Panama, and then transferred that money to accounts in various European banks. Noriega opened
accounts in other names and made numerous transfers of funds in order to conceal the true owner
of the money. French investigation identified a number of transactions involving accounts in France
attributable to Noriega and made between December 28, 1988 and December 22, 1989. The
transactions involve a total of approximately 15 million French francs. Noriega was convicted in
absentia in France on July 1, 1999 and sentenced to ten years’ imprisonment and fined 75 million
French francs.
Because the law regulating extradition differs from ordinary criminal or civil proceedings,
so much as to be classed sui generis, the government offers this memorandum as a guide to the
The purpose of the hearing required by 18 U.S.C. § 3184 is to determine whether a person
arrested pursuant to a complaint in the United States at the request of a foreign government is subject
to surrender to the requesting country under the terms of the pertinent treaty and relevant law. If the
court decides that the elements necessary for extradition are present, it incorporates these
determinations in factual findings and conclusions of law styled as a certification of the extradition
case, which is forwarded to the Department of State for disposition by the Secretary of State. The
decision of whether to surrender the fugitive to the requesting country rests with the Executive
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An extradition certification is in order where: (1) the judicial officer is authorized to conduct
extradition proceedings; (2) the court has jurisdiction over the fugitive; (3) the applicable treaty is
in full force and effect; (4) the crimes for which surrender is requested are covered by treaties; and
(5) there is competent legal evidence to support a finding of probable cause as to each charge for
which extradition is sought. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925), cited in Yapp v.
Reno, 26 F.3d 1562, 1565 (11th Cir. 1994); Hill v. United States, 737 F.2d 950, 951 n.1 (11th Cir.
1984).
virtually indisputable under 18 U.S.C. § 3184, which provides that a judicial officer can be “any
justice or judge of the United States, or any magistrate judge authorized so to do by a court of the
United States, or any judge of a court of record of general jurisdiction of any State.” Austin v.
Healey, 5 F.3d 598, 601-602 (2d Cir. 1993) (magistrate had authorization to conduct the extradition
hearing without specific delegation of authority), cert. denied, 510 U.S. 1165 (1994); Ward v.
Rutherford, 921 F.2d 286, 287 (D.C. Cir. 1990) (both statute and local rule made plain magistrate’s
authority to conduct extradition hearing); Jimenez v. Aristeguieta, 311 F.2d 547, 553-555 (5th Cir.
1962).
It is also well settled that the court has jurisdiction over a fugitive found within its
jurisdictional boundaries. See 18 U.S.C. § 3184 (the magistrate judge “may, upon complaint made
under oath, charging any person found within his jurisdiction . . . issue his warrant for the
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apprehension of the person so charged”); see also Pettit v. Walshe, 194 U.S. 205, 219 (1904); Grin
v. Shine, 187 U.S. 181 (1902); In re Pazienza, 619 F. Supp. 611 (S.D.N.Y. 1985).
The extradition statute, 18 U.S.C. § 3184, appears to limit extradition to instances in which
a treaty is in force between the requesting state and the requested state, and several cases have so
held. See, e.g., In re Chan Kam-Shu, 477 F.2d 333 (5th Cir.), cert. denied, 414 U.S. 847 (1973). As
part of its proof, the government has provided a declaration from Kenneth Propp, an attorney in the
Office of the Legal Adviser for the Department of State, attesting that there is a treaty in full force
and effect between the United States and the Republic of France. The Department of State’s opinion
in this sphere is entitled to deference from the court. See Terlinden v. Ames, 184 U.S. 270, 288
(1902); Kastnerova v. United States, 365 F.3d 980, 985-987 (11th Cir. 2004), cert. denied, 541 U.S.
1090 (2004); United States ex rel. Saroop v. Garcia, 109 F.3d 165, 171 (3d Cir. 1997); Then v.
Extradition treaties create an obligation to surrender fugitives under the circumstances defined
in the treaty. Article 1 of the treaty provides for the return of fugitives charged with or convicted of
an extraditable offense as further defined under the treaty. The documents submitted by the
requesting state establish that the fugitive has been charged and convicted in absentia in the Republic
of France with the crime of engaging in financial transactions with the proceeds of illegal drug
trafficking, in violation of § 415 of the French Customs Code (Law 88-1149 of December 23, 1988,
promulgated on December 28, 1988). As noted in the complaint filed with this court, the government
of France submitted assurances that Noriega would, upon his surrender to France, have an
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opportunity to challenge the in absentia conviction and seek a new trial. See United States v.
Fernandez-Morris, 99 F. Supp.2d 1358, 1366 (S.D. Fla. 1999) (“Probable cause is not established
The treaty may specify that extradition can be had for particular offenses that are listed in the
treaty, for any serious offense that is punishable in both the requesting and requested state (dual
criminality), for some combination of those two categories, or for an even broader range of offenses.
The court must determine whether the crime for which extradition is requested is among the offenses
Dual criminality is not required per se for extradition; it need be found only if, as here, the
treaty so requires. See Factor v. Laubenheimer, 290 U.S. 276 (1933); In re Assarsson, 635 F.2d 1237
(7th Cir. 1980). Article 2 of the treaty here applicable defines acts as extraditable if they are punished
under the laws of both the United States and France by a deprivation of liberty for a maximum of at
least one year or by a more severe penalty. A requesting country is not obliged to produce evidence
on all elements of a criminal offense nor to establish that its crimes are identical to ours. See Kelly
v. Griffin, 241 U.S. 6, 15 (1916). When, as here, a dual criminality analysis is required, the court
should examine the facts and decide whether the fugitive’s conduct would have been criminal under
our law. The Supreme Court noted in Collins v. Loisel, 259 U.S. 309 (1922), that dual criminality
is not a technical concept involving a comparison of elements of the two countries offenses:
The law does not require that the name by which the crime is described in the two
countries shall be the same; nor that the scope of the liability shall be coextensive, or,
in other respects, the same in the two countries. It is enough if the particular act
charged is criminal in both jurisdictions.
259 U.S. at 312 (emphasis added); accord Gallo-Chamorro v. United States, 233 F.3d 1298, 1307
(11th Cir. 2000), cert. denied, 516 U.S. 811 (1995); United States v. Saccoccia, 58 F.3d 754, 766 (1st
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In comparing the foreign offense with United States law to decide the question of dual
criminality, the magistrate may consider federal law, the law of the state in which the hearing is held,
and the law of a preponderance of the states. See Cucuzzella v. Keliikoa, 638 F.2d 105, 107-108 (9th
Cir. 1981). The court’s analysis of the question of dual criminality is subject to the general
requirement that it “approach challenges to extradition with a view toward finding the offense within
the treaty.” McElvy v. Civiletti, 523 F. Supp. 42, 48 (S.D. Fla. 1981). This liberal construction is
based in part on the recognition that foreign governments should not be expected to be versed in our
criminal laws and procedures. See Grin v. Shine, 187 U.S. at 184-185.
Noriega’s criminal money laundering activity in France, had it occurred in the United States,
The standard of proof for the sufficiency of the extradition hearing evidence is the familiar
requirement under federal law of probable cause to believe that a crime was committed and the
person before the court committed it. See Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006); Sindona
v. Grant, 619 F.2d 167 (2d Cir. 1980). This means evidence sufficient to cause a person of ordinary
prudence and caution to conscientiously entertain a reasonable belief in the guilt of the accused. See
Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973). The Supreme Court stated in Benson v.
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indictment, or other proceeding, in which he shall be finally tried upon the charge
made against him.
See also Collins, 259 U.S. at 316 (“The function of the committing magistrate is to determine whether
there is competent evidence to justify holding the accused to await trial, and not to determine whether
the evidence is sufficient to justify a conviction.”); Fernandez, 268 U.S. at 312 (“Competent evidence
Afanasjev v. Hurlburt, 418 F.3d 1159, 1165 n.11 (11th Cir.), cert. denied, 546 U.S. 993 (2005);
Barapind v. Enomoto, 400 F.3d 744, 752 (9th Cir. 2005); Sidali v. I.N.S., 107 F.3d 191, 199 (3d Cir.
In the case of a prior conviction, this court’s review of probable cause is basically limited to
reviewing the judgment of conviction. See United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d
726, 730-31 (9th Cir. 1975) (magistrate’s function is to determine whether there is “any” evidence
establishing reasonable or probable cause); Jimenez, 311 F.2d at 562; Merino v. United States
Marshal, 326 F.2d 5, 11 (9th Cir. 1963), cert. denied, 397 U.S. 872 (1964). However, in the case of
an in absentia conviction, Article 10 of the treaty requires, and the government of France has
provided, evidence which would justify committal of Noriega for trial had the offense been
As outlined in the complaint and further detailed in the request for extradition, France has
provided detailed evidence, drawing on the proof presented in the United States prosecution and
evidence developed in France’s own investigation and prosecution, of Noriega’s money laundering
activities in France. The French request shows that testimony at Noriega’s trial in this country
proved beyond a reasonable doubt that he received millions of dollars in illegal drug trafficking
proceeds and deposited them in Panamanian bank accounts. Further French investigation has traced
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those funds as they were transferred to banks in France and other European countries. The French
have evidence showing how the funds were transferred from account to account, often in the names
of others, in order to conceal the source and true ownership of the money.
Extradition is primarily an executive responsibility with a specially defined role for a judge.
An extradition court, as opposed to a judge hearing a habeas corpus petition, does not exercise the
broad judicial power of Article III under the Constitution when considering the original request for
an extradition arrest warrant. The extradition magistrate, specially authorized by statute and treaty,
performs the relatively ministerial task of determining whether to certify an extradition to the
Secretary of State. See Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828 (11th Cir. 1993); Lo Duca
v. United States, 93 F.3d at 1100, 1110 n.10 (2d Cir. 1996). The assignment of this generically
judicial-type function to a judge, while simultaneously not arrogating the whole extradition process
to the judiciary, does not violate the separation of powers doctrine. See Lo Duca, 93 F.3d at 1103-
1111. The executive remains primarily responsible for extradition, while a state or federal judge is
assigned the duty of determining probable cause. See Martin, 993 F.2d at 828-829.
The court considers the evidence presented on behalf of the requesting state and determines
whether the elements defined in the treaty and the case law cited above have been established. If any
offered, the court rules on it. The court makes written findings of fact and conclusions of law as to
each of the elements, including separate findings for each offense as to which extradition is sought.
See Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir. 1973) (separate findings). When the court certifies
a case to the Secretary of State, the court also commits the fugitive to the custody of the United States
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Marshal to await the further determination by the Secretary regarding surrender to the representatives
of the requesting state. The court’s Certification of the case is provided to the Secretary of State
together with a copy of any evidence presented on behalf of the fugitive. 18 U.S.C. § 3184. See
Ordinola v. Hackman, 478 F.3d 588, 597 (4th Cir. 2007), cert. pending, No. 06-11518 (May 23,
2007).
Extradition treaties must be liberally construed to effect their purpose, namely, the surrender
of fugitives for trial for their alleged offenses. See Valentine v. United States ex rel. Neidecker, 299
U.S. 5, 14 (1936); Factor v. Laubenheimer, 290 U.S. 276, 293, 301 (1933). In discussing the
application of this rule, the District Court for the Southern District of Florida in McElvy v. Civiletti,
[A] narrow and restricted construction is to be avoided as not consonant with the
principles deemed controlling in the interpretation of international agreements.
Considerations which should govern the diplomatic relations between nations, and the
good faith of treaties, as well, require that their obligations should be liberally
construed so as to effect the apparent intentions of the parties to secure equality and
reciprocity between them.
(citations omitted).
In order to carry out a treaty obligation the treaty “should be construed more liberally than
a criminal statute or the technical requirements of criminal procedure,” Factor, 290 U.S. at 298. This
country does not expect foreign governments to be versed in our criminal laws and procedures. Grin,
187 U.S. at 184. Thus, “[f]orm is not to be insisted upon beyond the requirements of safety and
given great weight by our courts. See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 168 (1999);
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Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-185 (1982) (“Although not
conclusive, the meaning attributed to treaty provisions by the Government agencies charged with
The extradition hearing prescribed by 18 U.S.C. § 3184 is unique in nature. See, e.g., Martin,
993 F.2d at 828; Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.) (extradition is sui generis), cert.
denied, 429 U.S. 833 (1976). An extradition hearing is not a criminal proceeding; its purpose is
merely to decide probable cause, not guilt or innocence. See Neely v. Henkel, 180 U.S. 109, 123
(1901); Benson v. McMahon, 127 U.S. 457, 463 (1888); Afanasjev, 418 F.3d at 1165 n.11. Thus,
the person whose extradition is sought is not entitled to the rights available in a criminal trial. See
Neely,180 U.S. at 122 (rights available to one charged with criminal offense in this country not
applicable to offenses committed outside the United States against the laws of another country);
accord, Charlton v. Kelly, 229 U.S. 447, 461 (1931); Martin, 993 F.2d at 829. The process due for
a determination of guilt under the foreign law is correctly afforded by the foreign court making that
Accordingly, the fugitive has no right to discovery, Prasoprat v. Benov, 421 F.3d 1009, 1014
(9th Cir. 2005), cert. denied, 546 U.S. 1171 (2006); Koskotas v. Roche, 931 F.2d 169, 175 (1st
Cir.1991); Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984); he has no right to cross
examination if any witnesses testify at the hearing, Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407
(9th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); Messina, 728 F.2d at 80; his right to present
evidence is severely limited, Messina, 728 F.2d at 80; there is no Sixth Amendment right to a speedy
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trial, Yapp, 26 F.3d at 1565; Martin, 993 F.2d at 829; Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st
Cir. 1978); the Fifth Amendment guarantee against double jeopardy does not apply to extradition,
Collins, 262 U.S. at 429; Matter of Extradition of McMullen, 989 F.2d 603, 612-613 (2d Cir.), cert.
denied, 510 U.S. 913 (1993); the exclusionary rule is not applicable, Romeo v. Roache, 820 F.2d 540,
545 (1st Cir. 1987); Simmons v. Braun, 627 F.2d 635, 636-637 (2d Cir. 1980); and the defendant does
not have the right to confront his accusers, Bingham v. Bradley, 241 U.S. 511, 517 (1916).
The Federal Rules of Criminal Procedure do not apply to extradition proceedings. Rule
54(b)(5) states that “[t]hese rules are not applicable to extradition and rendition of fugitives.” The
Federal Rules of Evidence are also inapplicable. Rule 1101(d)(3) provides that “[t]he rules (other
than with respect to privileges) do not apply . . . [to p]roceedings for extradition or rendition.” See
Afanasjev, 418 F.3d at 1164-1165; Melia v. United States, 667 F.2d 300 (2d Cir. 1981); Greci v.
extraditability. See Collins, 259 U.S. at 317; Afanasjev, 418 F.3d at 1165. Extradition treaties do not
so “would defeat the whole object of the treaty.” Yordi v. Nolte, 215 U.S. 227, 231 (1909); accord,
Bingham, 241 U.S. at 517. Thus, a finding of extraditability may be and often is based entirely on
documentary evidence. See Afanasjev, 418 F.3d at 1163-1165; Artukovic v. Rison, 784 F.2d 1354,
§ 3190, which provides for admission of documents as long as they are properly authenticated. See
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Afanasjev, 418 F.3d at 1164; see also Collins, 259 U.S. at 313. Alternatively, documents may be
received in evidence if they are certified in accordance with the terms of the treaty. See Emami v.
United States District Court, 834 F.2d 1444, 1451 (9th Cir. 1987); Escobedo v. United States, 623
international obligations of the United States under an extradition treaty, and the inherent practical
against him is very circumscribed. The fugitive may not introduce evidence that contradicts the
evidence submitted on behalf of the demanding state, but may introduce evidence explaining the
evidence submitted by the requesting state. See Collins, 259 U.S. at 315-317; Charlton, 229 U.S. at
461; Ordinola, 478 F.3d at 608-609; Hoxha, 465 F.3d at 561. The district court in In re Sindona, 450
F. Supp. 672 (S.D.N.Y. 1978), aff’d, 619 F.2d 167 (2d Cir. 1980), discussed the distinction between
contradictory and explanatory evidence and cited the established authority for the proposition that
an extradition hearing should not be transformed into a full trial on the merits:
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450 F. Supp 672 at 685. The extent to which the fugitive may offer explanatory proof is largely
within the discretion of the committing judicial officer. See Koskotas, 931 F.2d at 175; Hooker v.
Klein, 573 F.2d 1360, 1369 (9th Cir.), cert. denied, 439 U.S. 932 (1978); United States ex rel
Petrushansky v. Marasco, 325 F.2d 562, 567 (2d Cir. 1963), cert. denied, 376 U.S. 952 (1964) (and
cases cited therein). The category of explanatory evidence is not large, and the fact that the purpose
of the hearing is to determine the sufficiency of the evidence to sustain the charge, and the fact that
the overarching goal of the proceeding is to effectuate the purposes of the treaty, further limit what
evidence may be admitted. Evidence that requires the court to make determinations properly within
the province of the ultimate trier of fact, particularly when those determinations rest on foreign law,
exceed the limits of “explanatory” evidence and are not properly before the court. See Extradition
D. Impermissible Defenses
A court should reject defenses against extradition that “savor of technicality,” as they are
peculiarly inappropriate in dealings with a foreign nation. For example, a variance between the
charges pending in the foreign state and the complaint filed on behalf of that state in our federal
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courts is not a defense to surrender. See Glucksman v. Henkel, 221 U.S. 508, 513-14 (1910); accord
Bingham, 241 U.S. at 517; United States ex rel. Bloomfield v. Gengler, 507 F.2d 925, 927-1024 (2d
1. No Affirmative Defenses
It is well settled that affirmative defenses are not relevant in extradition hearings and should
not be considered. See Charlton, 229 U.S. at 462; Collins, 259 U.S. at 316-317; Hooker, 573 F.2d
at 1368. A fugitive may not introduce evidence that (1) conflicts with the evidence submitted on
behalf of the demanding state, Collins, 259 U.S. at 315-317; (2) establishes an alibi, Shapiro, 478
F.2d at 901; (3) sets up an insanity defense, Charlton, 229 U.S. at 462; or (4) impeaches the
credibility of the demanding country’s witnesses, Bovio v. United States, 989 F.2d 255, 259 (7th Cir.
A fugitive’s contention that he or she will be tried in the extraditing country for crimes other
than those for which extradition will be granted, or that surrender is being requested for political
offenses, must be rejected as baseless or beyond the responsibility of the court, for the United States
Government does not presume that the demanding government will seek a trial in violation of a
treaty. See Bingham, 241 U.S. at 514. As the district court noted in Gallina v. Fraser, 177 F. Supp.
857, 867 (D. Conn. 1959), “the Secretary of State of the United States would not authorize the
surrender of a fugitive . . . to be punished for non-extraditable crimes, and . . . any extradition would
3. Rule of Non-Inquiry
It is not the role of the court to look behind the extradition request to the motives of the
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requesting country. See Ordinola, 478 F.3d at 604 (“the motives of the requesting government are
irrelevant to our decision” and “must be addressed to the Secretary of State”); Eain v. Wilkes, 641
F.2d 504, 513 (7th Cir.) (sole discretion of Secretary of State to determine whether foreign country’s
request for extradition is a subterfuge), cert. denied, 454 U.S. 894 (1981). Likewise, the court should
not investigate the fairness of the requesting country’s criminal justice system. See U.S. v. Kin-Hong,
110 F.3d 103, 110 (1st Cir. 1997) (“It is not that questions about what awaits the relator in the
requesting country are irrelevant to extradition; it is that there is another branch of government, which
has both final say and greater discretion in these proceedings, to whom these questions are more
properly addressed”); see also Prasoprat, 421 F.3d at 1016; Blaxland v. Commonwealth Director,
CONCLUSION
Extradition hearings are often characterized as sui generis. See, e.g., Martin, 993 F.2d at
828; Hooker, 573 F.2d at 1369. Despite the unusual nature of the proceedings, there is no mystery
with the Supreme Court. See Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990). Although other
elements must also be present, the paramount issue of every extradition proceeding is whether there
exists probable cause to believe that the fugitive has committed the crimes charged in the requesting
country. The latter determination is the kind that courts make in a preliminary hearing under Federal
Rule of Criminal Procedure Rule 5.1. The extradition hearing must not be converted into a trial on
the merits and the rules ordinarily applicable in such trials are not used. The extraditee’s
opportunities to oppose the request are limited because his defenses will be aired in the requesting
country under its law. The court’s findings of fact and conclusions of law should deal with each of
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the elements listed above, and with each offense for which extradition is requested.
R. ALEXANDER ACOSTA
UNITED STATES ATTORNEY
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 26, 2007, I electronically filed the foregoing document
__ s/ Michael P. Sullivan
Michael P. Sullivan
Assistant United States Attorney
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