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United States v. Fontana

United States Court of Appeals, Sixth Circuit

August 25, 2017

United States of America, Plaintiff-Appellee,
Antonio P. Fontana, Defendant-Appellant.

         Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:14-cr-20141-1-David M. Lawson, District Judge.

         ON BRIEF:

          Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant.

          Shane Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

          Before: ROGERS, GRIFFIN, and KETHLEDGE, Circuit Judges.


          ROGERS, Circuit Judge.

         Following extradition from Canada on twelve federal child-pornography-related charges, defendant Fontana pleaded guilty to four of those charges. He was then sentenced in a proceeding in which the sentencing judge took into account, in applying the applicable sentencing factors under 18 U.S.C. § 3553(a), the fact that after Fontana's arrest, investigators discovered videos and images of up to fifty other women, including minors, whom he had also victimized, none of whom were the basis for Fontana's extradition. On appeal, Fontana challenges the district court's consideration of the additional victims, as he did below, as a violation of the U.S.-Canada extradition treaty's "specialty" requirement that he only be detained, tried, or punished for the crimes for which he was extradited. While an extradited person may defend his criminal prosecution as beyond the scope of the extradition under the "specialty" theory, Fontana's challenge to his sentence fails here because the treaty does not preclude taking into account activity that is not the basis of the extradition in determining punishment for the crimes on which the extradition was based, at least as long as such consideration did not affect the statutory range of that punishment.

         In October 2013, Antonio Fontana lived in Pickering, Ontario. He was in his late 50s, married, with adult children. On the chat website, Fontana posed as a sixteen-year-old boy named "Jason, " and started talking with a fifteen-year-old minor female living in suburban Detroit ("Minor Victim One"). Fontana claimed that his computer's camera was broken-so that Minor Victim One could not discern his age-and convinced his victim to take off her shirt. Without the victim's knowledge, he recorded this act, and then used the threat of publishing this recording online to take over her life. He forced her to perform more, increasingly invasive sexual acts, which he recorded and used as additional leverage. He forced her to be in front of her web camera at certain times, to sleep in a certain position so that she was visible to the web camera, and to ask for permission to attend social events. He forced her to convince a friend-a fourteen-year-old female ("Minor Victim Two")-to perform sexual acts for him as well, which he also recorded and then began using to threaten the friend as well. Eventually, Minor Victim One began to suffer from severe depression and tried to cut off contact. In response, Fontana e-mailed Minor Victim One's mother the explicit photos he had taken of her daughter and demanded that his victim get back in touch with him. After this threat was unsuccessful, Fontana e-mailed more explicit photos to the principal of Minor Victim One's school and over eighty members of her church. The mother called the police, who were able to uncover Fontana's true identity through the Internet.

         Ontario police arrested Fontana on February 23, 2014. By chance, at the time of his arrest, Fontana was online trying to coerce another minor female into performing sexual acts for him. Fontana was detained in Canada pending extradition. In March 2014, a U.S. grand jury indicted Fontana on twelve counts arising out of his conduct towards Minor Victim One and Minor Victim Two. In June 2015, the Canadian government surrendered Fontana to the United States to stand trial for these crimes, pursuant to the extradition treaty between the two countries. See Treaty on Extradition between the United States of America and Canada, Can.-U.S., 27 UST 983, Dec. 3, 1971 ("U.S.-Can. Extradition Treaty"). During the indictment and extradition process, investigators seized and analyzed Fontana's computer. The computer was found to have over 1, 000 images and multiple videos of additional women and girls, from which investigators determined that Fontana had engaged in similar conduct with at least fifty victims. At the time of Fontana's sentencing, only a handful of these uncharged victims had been identified, but all were minors, and most lived in the United States.

         Once in the United States, Fontana pleaded guilty to four of the twelve counts for which he had been indicted: one count of coercing and enticing a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b); one count of producing child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of using the internet to extort a person, in violation of 18 U.S.C. § 875(d).

         During sentencing, however, the issue arose as to whether to take into account Fontana's other, uncharged victims. Even without consideration of his uncharged victims, Fontana's net offense level was above the maximum possible under the Sentencing Guidelines, such that the guidelines recommended incarceration for life. Nevertheless, the Government argued that the district court should consider the uncharged victims under the 18 U.S.C § 3553(a) factors, apparently in response to Fontana's request for a downward variance outside his Guidelines range.

         Fontana objected, arguing that the district court's consideration of the uncharged victims violated a provision of the U.S.-Canada extradition treaty providing that: "[a] person extradited under the present treaty shall not be detained, tried or punished in the territory of the requesting state for an offense other than that for which extradition has been granted." U.S.-Can. Extradition Treaty art. 12(1) (emphasis added). This provision of the treaty incorporates what is known as the rule of specialty, which provides that "a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition." United States v. Rauscher, 119 U.S. 407, 430 (1886).

         The district court, however, overruled Fontana's objection and held that it could consider his uncharged victims in sentencing him. In reaching this conclusion, the district court relied primarily on an Eighth Circuit case, United States v. Lomeli, 596 F.3d 496, 502-03 (8th Cir. 2010), which applied an extradition treaty with Mexico which, like the extradition treaty with Canada at issue in Fontana's case, held that an extradited person could not be "detained, tried or punished" for a separate crime. In particular, the district court found persuasive Lomeli's reasoning that the traditions and procedures of the receiving nation's courts were relevant for determining the intent of the treaty parties in drafting the extradition treaty, and that "[g]iven the long-standing practice of United States courts of considering relevant, uncharged evidence at sentencing, " Lomeli, 596 F.3d at 502 (quotation marks omitted), it would be difficult to conclude that Mexico did not intend for an extradited defendant to face sentencing enhancements for uncharged crimes. The district court also considered this circuit's prior precedent in United States v. Garrido-Santana, 360 F.3d 565, 578 (6th Cir. 2004), but ultimately suggested that the case might be distinguishable based on the different treaty language: the U.S.-Dominican Republic treaty provision in Garrido-Santana held only that "no [extradited] person shall be tried" for a separate offense, while the U.S.-Canada treaty at issue in Fontana's case held that "[a] person extradited . . . shall not be detained, tried, or punished." After concluding that consideration of Fontana's uncharged victims would not violate the rule of specialty, the court presumably considered these victims in Fontana's sentence. Nevertheless, the court did grant Fontana a downward variance and sentenced him to 360 months' incarceration rather than the guidelines recommendation of life. Fontana now appeals.

         The district court did not violate the rule of specialty by considering Fontana's other victims in sentencing for ...

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