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.
Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,
Michigan, for Appellant.
Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit,
Michigan, for Appellee.
Before: ROGERS, GRIFFIN, and KETHLEDGE, Circuit Judges.
ROGERS, Circuit Judge.
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.
October 2013, Antonio Fontana lived in Pickering, Ontario. He
was in his late 50s, married, with adult children. On the
chat website Omegle.com, 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.
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.
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).
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.
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).
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.
district court did not violate the rule of specialty by
considering Fontana's other victims in sentencing for ...