Prosecutor Dennis Watkin's Letter to the Brazilian Authorities

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Trumbull County Prosecutor Dennis Watkins

Dear Ilmo. Edson Oliveira de Almeida:

Please be advised that I am the Prosecuting Attorney of Trumbull County, Ohio, United States of America. On April 12, 2007, I filed a Complaint in Trumbull County Common Pleas Court charging Claudia C. Hoerig with the Aggravated Murder of her husband Karl Hoerig on or about March 12, 2007. A copy of the Complaint and Affidavit in support of the charge is attached to this letter for your review. After the complaint was filed, the United States Government, through the Office of U.S. Marshall Peter Elliot, United States Marshall-Northern District, Cleveland, Ohio assisted Trumbull County authorities in obtaining a Fugitive Warrant for Claudia C. Hoerig who fled the United States to her native country of Brazil. Claudia Sobral had come to the United States in 1989 to live, work, learn our language, and receive an education. She married twice and became a naturalized American citizen in 1999. The facts show that she lived well in America and had the full blessings of liberty.

As a career prosecutor in Ohio, I have over the years brought to justice many individuals who fled Trumbull County and Ohio to avoid capture and punishment. However, I never imagined that when I obtained a Warrant for Arrest of Claudia Hoerig on April 12, 2007, that there would be so many roadblocks to having her arrested and brought to justice.

I communicated about her return to the United States with Attorney Robert Iraola, Office of International Affairs, Department of Justice, Washington, D.C.; Ronald A. Hendren of the Office of the Legal Attache, Brasilia, Brazil; Special Agent Herb Fitzgerald, Office of Federal Bureau of Investigation, Youngstown, Ohio and David Brassanini, Legal Attache, Brasilia, Brazil.

Additionally when I was informed by Attorney Iraola in the spring of 2007 that Brazilian Embassy officials in Washington, D.C. stated that Brazil would not recognize the Untied States’ right to have Mrs. Hoerig arrested and extradited even though she was a citizen of the United States, I sought assistance from various federal officials including the President of the United States, both U.S. Senators from Ohio and several members of the House of Representatives including our local Congressman Tim Ryan. In fact, Mr. Ryan has tirelessly supported our cause from the beginning.

Sometime in April or early May, I was told to call Mr. Ron Hendren of the U.S. Legal Attache’s Office in Brasilia regarding this case and possible trial in Brazil. Although I and other local officials and the victim’s family opposed the idea of having a murder trial in Brazil for a lot of reasons, I did call Mr. Hendren and talked to him about how he could help us. He told me that he was in contact with you about the case and would attempt to obtain a prosecutorial “proposal” which would outline for us what would be expected from a trial in Brazil. (See attached Ronald A. Hendren e-mail of July 11, 2007.)

Weeks and months followed with no response from you or anyone. Finally in January I talked to Mr. David Brassanini who informed me that after consultation with officials of the Government of Brazil, that your country continues to hold the view that the law of Brazil does not allow for the extradition of its citizens even if there is dual citizenship. He further told me that if Brazil were to change its Constitution and Laws as have other South American countries to permit the extradition of Brazilian nationals, such a change would not apply to Claudia Hoerig. In short, we could not legally get her as long as she remains in Brazil.

As a follow up, Mr. Brassanini wrote me on January 18, 2008 stating that if I wished to pursue the extradition of Mrs. Hoerig, “the request should be coordinated through the main DOJ/OIA in Washington, D.C.” On the other hand if my office wanted to pursue other options we could do the following:

1) Claudia Hoerig could be charged under Brazilian state law, tried in the State court of her residence with murder, and if convicted, would face a sentence of 6-30 years;

2) The DAG advised that all formal testimony and evidence submission would be coordinated through the Mutual Legal Assistance Treaty;

3) If at any time during this process, your office has concerns or questions regarding items #1-2, the same should be directed to you. (See attached Brassanini letter of January 18, 2008.)

Although my first choice at this time is to continue to pursue the extradition of Claudia Hoerig, I would appreciate it if you could send me by mail or e-mail the Brazilian statute or law allowing the Brazilian Government to prosecute its own citizens for a common crime committed outside of the territories of Brazil. Further, I would appreciate any high Brazilian Court decisions upholding the constitutionality of such prosecutions along with an outline of the criminal procedure in such cases (e.g. what’s the statute of limitation for murder committed outside of Brazil). These materials would be helpful to me in understanding any possible future Brazilian prosecution. However, to repeat, it is our present position to request the United States Government to take all necessary action and diplomacy to put the United States and Brazil on a level playing field. There is a strong held opinion by those of us involved in this matter that it makes little sense to take all our evidence, witnesses, experts, victim’s family and prosecution team along with translators to Brasilia to try a woman who is an American citizen who we believe killed her husband in their family home in Newton Falls, Ohio. Not one of the twenty-plus witnesses in this circumstantial evidence case speaks the Portugese language. Furthermore, if today, God forbid an American wife would kill her Brazilian husband in Sao Paulo and flee to Warren, Ohio after the murder, I would assist local law enforcement in making sure she would be arrested and extradited to Brazil to face trial. As you know, nothing in America’s Constitution or laws prohibits the extradition of Americans who commit crime in foreign countries. Although all Sovereign Governments retain the authority or discretion to decide whether or not to extradite its own nationals, enlightened countries in my opinion should not provide sanctuary for common criminals. It makes no sense to provide a safe haven for dangerous persons who may kill again. It makes no sense to provide an incentive to the lawless and terrorists to come to the United States knowing if they would kill people in America, they could do so with virtual impunity so long as they were successful in returning to their native Brazil before apprehension. With all due respect, the unnecessary difficulty and excessive expense involved in jumping through the hoops to try a criminal case in Brazil which was committed in America is almost laughable. It makes international extradition and comity illusory. I have enclosed for your review a copy of the U.S. Department of State Report on International Extradition Relating to Columbia dated January 17, 2001. Though this report is somewhat outdated, it does document successful new extradition treaty negotiations between the United State and many South American countries which now allow for the extradition of their own nationals. The United States as a matter of policy draws no distinction between nationals and non-nationals in extradition.

Apparently from what I have learned in my conversations with Mr. Hendren and Brassanini, you believe that the extradition treaty of Brazil and Constitution of Brazil could not be changed to cover the extradition of Mrs. Hoerig to the United States. If that is your view I would appreciate seeing the legal authority which supports this proposition of law. Further, I understand that Brazil may not want to change its law at the present time. Nevertheless I respectfully urge you to take a second look at this case and possibly others which may follow. The correct course is clear. Justice cries for Karl Hoerig and all victims of planned intentional murder. Furthermore, these cases should be tried where the murder is committed unless there are good reasons to do otherwise, i.e., political prosecutions, etc. In short, I am asking you today to start to change the way things are done in Brazil regarding extradition. There is no statute of limitation for murder in Ohio. As long as Claudia Hoerig lives, justice awaits her in an Ohio courtroom.

It was on August 29, 1867 when Angelo de Giacomo allegedly willfully and maliciously killed one Airgliano at or near San Simeone, in the kingdom of Italy and fled to the United States of America. On March 17, 1869, Naples issued an arrest warrant for de Giacomo who was arrested in New York in October of 1874. De Giacomo thought he had sanctuary for the murder since the extradition treaty went into effect after the murder. The American courts respected Italy’s right to have de Giacomo extradited. It held: “A person who has committed a crime abroad and come to the United States before the making of an extradition treaty covering a surrender of such crime has not thereby acquired a right of asylum of which he cannot be deprived.” Under principles of International and American law, it is my understanding that this is the majority view among the progressive nations of the world. Attached is a copy of this decision - In Re De Giacomo, C.C.N.Y. 1874, 12 Blatchf. 391. (See also: M.C. Bassiouni, International Extradition and World Public Order at 524.)

This principle of international extradition has been followed in many recent cases in the United States. For example in the United States v. Rammath, ____ F. Supp 2d ___, 2008 WL 145263 (E.D. Tex.) the United Kingdom pursuant to an extradition treaty between the Government of the United States of America and the Government of the United Kingdom requested that Dr. Priya Rammath be extradited to England on the charge of manslaughter to a patient in 1998. In 1998, a 1976 treaty between the two nations was in effect which did not provide for the extradition on the specific charge. However, subsequent to the offense, a new treaty revived the United Kingdom’s ability to extradite. Dr. Rammath perceived this to implicate ex post facto principles of justice. The American court in upholding the treaty and rejecting the ex post factor argument stated “The obvious flaw in this argument is that the treaty change in no way criminalized an action that was legal when it was committed...extradition proceedings are not criminal in nature and therefore all talk of ex post facto legislation...is quite beside the mark.” (2008 WL145263 at p.7, copy provided). See also: Matter of Extradition of Ernst, 1998 WL 51130 (S.D. N.Y.) (where individuals facing extradition court said it was not prepared to admit that a person who has committed a crime abroad and fled to this country has acquired a right of asylum here, as a personal right, so that, under a subsequent law whether treaty or statute, he cannot be delivered up as a fugitive from justice...Since there is “no right of asylum” there is no right created by the reliance interest Ernst alleges...Moreover, since it has been the law for more than a century that extradition treaties can be enacted or modified with retroactive effect, an individual can never reasonably rely on an existing treaty to provide an absolute bar against future extradition. According, there is no merit to Ernst’s due process argument.” (Emphasis added) (1998 WL 51130 at p. 12, copy provided).

It is our hope that Brazil will not take the view that Claudia Hoerig has acquired a right of asylum there which cannot be modified by treaty (or its domestic law) with retroactive effect as it has been done in the United States and other countries. Where does it say in in Brazilian law that this cannot be done? From what I know it appears that some in Brazil do not now have the political will to change its laws even though it has the authority under international principles of due process of law to do so. My country in its history has had unjust laws but through the efforts of good people we changed such laws.

In conclusion, I am very open to hear from you regarding your position. Until that time, I will be working with various local, state, and federal law enforcement officials along with other government officials including Congressman Ryan’s Office to continue our efforts to obtain justice for Major Karl Hoerig no matter how long it takes. The victim’s family deserves no less. As it has been written, “Justice is as strictly due between neighbor nations as between neighbor citizens.”

Thank you for taking the time to consider my lengthy presentation and request.