“The Underlying-Conduct Rule” – Second Circuit Clarifies Extraditable-Offense Analysis in Lalama Gomez v. United States (2025)

I. Introduction

In Lalama Gomez v. United States, the U.S. Court of Appeals for the Second Circuit confronted a recurring ambiguity in treaty-based extradition: What happens when the requesting state’s charge is not named in the treaty list, yet the factual conduct appears to fit within a listed offense? The petitioner, Mario Lalama Gomez, sought habeas relief after a magistrate judge certified his extradition to Ecuador for “sexual abuse,” contending that the treaty lists only “rape” and “attempted rape,” not “sexual abuse.” The Court, in an opinion by Judge Richard J. Sullivan, held for the first time that:

Extradition is permissible where the underlying conduct, as shown by probable cause, fits an offense enumerated in the treaty—regardless of the foreign prosecutor’s charge label or statutory elements.

Along the way the Court addressed evidentiary limits in extradition hearings and reaffirmed the “duty of non-inquiry,” leaving humanitarian considerations to the Executive.

II. Summary of the Judgment

• Extraditable offense. The Court adopted an underlying-conduct approach. Because the evidence suggested that Lalama Gomez digitally penetrated a ten-year-old, his acts satisfied the treaty term “rape.”
• Expert testimony. The magistrate judge acted within her discretion in excluding defense expert evidence on Ecuadorian evidentiary law; such testimony contradicted, rather than merely explained, the Government’s proof and risked turning the hearing into a mini-trial.
• Humanitarian objections. Consistent with long-standing precedent, only the Secretary of State, not the courts, may deny extradition on humanitarian grounds. The Court saw no reason to depart from the rule of non-inquiry.
• Outcome. District court judgment denying habeas corpus was affirmed; mandate ordered to issue within 48 hours given looming Ecuadorian statute-of-limitations concerns.

III. Analysis

A. Precedents Cited and Their Influence

1. Rumsfeld v. Padilla, 542 U.S. 426 (2004) & Skaftouros v. United States, 667 F.3d 144 (2d Cir. 2011)
   – Addressed proper respondent in habeas petitions; Government’s waiver allowed Court to reach merits.
2. Cheung v. United States, 213 F.3d 82 (2d Cir. 2000) and progeny
   – Defined the limited role of the judiciary in extradition: treaty validity, coverage of the charge, and probable cause.
3. Collins v. Loisel, 259 U.S. 309 (1922) & Factor v. Laubenheimer, 290 U.S. 276 (1933)
   – Supreme Court pronouncements that extradition treaties are to be liberally construed and that dual criminality focuses on conduct, not nomenclature. The panel used this interpretive ethos to prefer a conduct-based test.
4. District court splits (Handanović, Kosktotas, Pineda Lara)
   – The opinion canvassed two lines: (i) conduct-based vs. (ii) essential-elements matching. The Second Circuit expressly adopted the former, resolving the split for courts within the Circuit and providing persuasive reasoning nationally.
5. Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990); Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980)
   – Reinforced non-inquiry doctrine; cited in rejecting humanitarian claims.

B. Legal Reasoning

1. Treaty Interpretation – Choosing Conduct over Elements

The Court began with established treaty-interpretation principles: treaties should be construed liberally to effect the parties’ intent (Factor). Recognising that offense nomenclature evolves and that the U.S.–Ecuador treaty is a list treaty (enumerating offenses by name), the Court observed that a rigid elements-matching test would thwart reciprocity whenever domestic statutes diverge linguistically.

Relying on conduct-centric language from Collins v. Loisel (“It is enough if the particular act charged is criminal in both jurisdictions”), the panel held that the magistrate judge must ask only whether the facts alleged amount to an offense on the treaty list. Digital penetration of a minor is “rape”, even if Ecuador labels the charge “sexual abuse” because its statute of rape requires “carnal access”.

2. Probable Cause Standard

Echoing Austin v. Healey, the Court reiterated that extradition probable cause is minimal— whether evidence would “support a reasonable belief” in guilt—not proof beyond reasonable doubt. The victim’s and mother’s statements plus the psychologist’s report sufficed, even if Ecuadorian court rules might later demand more corroboration.

3. Evidentiary Limits and Expert Testimony

The Court re-affirmed that extradition hearings are not trials; Federal Rules of Evidence do not apply (Fed. R. Evid. 1101(d)(3)). A fugitive may offer only explanatory, not contradictory, evidence. Defense experts sought to show penetration evidence would be inadmissible under Ecuadorian procedure, a question the Second Circuit has warned extradition courts to avoid (Skaftouros). Hence exclusion was within discretion and, in any event, not a ground for habeas relief.

4. The Duty of Non-Inquiry

Citing Ahmad and Sindona, the panel dismissed humanitarian objections, emphasising that Congress allocated such policy judgments to the Secretary of State (18 U.S.C. § 3186). Despite dicta in Gallina v. Fraser, no case has pierced that duty; the Court declined to create the first exception.

C. Potential Impact

• Uniformity within the Circuit. District courts in New York, Connecticut, and Vermont now have binding guidance: evaluate treaty coverage by conduct. This settles prior intra-circuit inconsistency.
• Persuasive authority nationwide. The Second Circuit is often cited in extradition jurisprudence. Other circuits lacking precedent (most) will likely adopt the “underlying-conduct rule,” shifting doctrine toward facilitation of extradition.
• Practical effect on fugitives. – Defense arguments contesting mismatched crime labels will face steeper odds.
  – Litigants may focus on undermining probable cause rather than semantic treaty disputes.
• Executive-Judicial balance. The opinion crystallises roles: courts decide treaty coverage and probable cause; the State Department addresses fairness and humanitarian claims. The decision may prompt practitioners to bolster advocacy before the Office of the Legal Adviser rather than in habeas courts.
• Transnational policy. By facilitating extradition even where statutes differ terminologically, the decision promotes reciprocity and discourages flight from justice via linguistic loopholes.

IV. Complex Concepts Simplified

Extradition Treaty (List Treaty)

A bilateral agreement naming specific crimes (e.g., murder, rape) for which each country promises to surrender fugitives. If a crime is not on the list, surrender normally cannot occur.

Underlying-Conduct Rule

The court asks: What did the fugitive allegedly do? If those acts amount to a listed offense, extradition is allowed, even if the foreign prosecutor uses a different statutory provision.

Probable Cause in Extradition

A low evidentiary threshold—similar to that for issuing an arrest warrant. Courts do not decide guilt, only whether reasonable grounds exist to believe the fugitive committed the offense.

Explanatory vs. Contradictory Evidence

– Explanatory: Clarifies or places government evidence in context (may be admitted).
– Contradictory: Attempts to negate or impeach government evidence (generally excluded).

Duty of Non-Inquiry

U.S. courts will not examine the requesting state’s penal conditions, fairness of trial, or potential abuse; the Secretary of State handles such diplomatic/humanitarian concerns.

V. Conclusion

Lalama Gomez v. United States is significant for firmly anchoring the underlying-conduct rule at the appellate level. By prioritising facts over statutory labels, the Second Circuit advances the treaty objective of seamless cooperation and removes an obstacle that fugitives have used to delay or defeat surrender. The Court simultaneously reaffirmed evidentiary constraints on extradition hearings and the judiciary’s obligation to defer humanitarian evaluations to the Executive. Going forward, counsel should expect treaty-label challenges to carry little weight, pivoting litigation toward probable-cause disputes and, where appropriate, diplomatic lobbying. The decision thus clarifies, modernises, and streamlines extradition practice within one of the most active extradition circuits in the United States.