of the events that resulted in a May 24, 1993 shooting at the International Airport, Guadalajara, Jalisco, Mexico. According to the allegations of the Mexican authorities, the Arellano brothers, located in Tijuana, sent a group of men, described as a "hit squad", to Guadalajara to search for and ultimately murder rival drug lord, Joaquin Guzman Loera (also called "El Chapo"). Instead of finding and killing "El Chapo", the "hit squad" ended up in a shootout at the Guadalajara airport which resulted in the death of Roman Catholic Cardinal Posadas and at least six others.
It is uncontradicted that there was a shootout at the Guadalajara airport at which Cardinal Posadas and others were killed. Respondents contend, however, that they were not part of any group traveling to Guadalajara much less the "hit squad" alleged to have committed the shootings. They further contend that any evidence, in the form of statements linking them to the "hit squad", was elicited as a result of torture and any fruits of those statements should therefore be disregarded in their entirety as inherently unreliable. They also contend they were not identified or that the identification was flawed. They further argue that even if there is evidence of their involvement, there is neither sufficient probable cause to justify their extradition nor competent evidence of dual criminality.
Nature of hearing and requisite elements for extradition
An extradition hearing, under 18 U.S.C. § 3184 et seq., is designed to determine whether the respondent should be surrendered to a foreign government. In order to extradite these respondents, the United States, on behalf of the Republic of Mexico, must establish that:
(1) the judicial officer is authorized to conduct extradition proceedings;
(2) the court has jurisdiction over the respondent;
(3) the applicable treaty is in full force and effect;
(4) the crimes for which surrender is sought are included within the terms of the treaty; and,
(5) there is probable cause that a crime or crimes were committed and that the respondents participated in or committed it. Bingham v. Bradley 241 U.S. 511, 60 L. Ed. 1136, 36 S. Ct. 634 (1916). McNamara v. Henkel 226 U.S. 520, 57 L. Ed. 330, 33 S. Ct. 146 (1913), Zanazanian v. US 729 F.2d 624 (9th Cir. 1980).
If the court determines that all the requisite elements have been met, the findings are incorporated into a certification of extraditability. The certificate is forwarded to the Department of State. The Secretary of State makes the ultimate decision on whether to surrender the respondents. 18 U.S.C. § 3184 et seq.
Discussion of elements and evidence
1. The judicial officer is authorized to conduct the extradition proceedings.
The authority of a Magistrate Judge to conduct the proceedings is provided by 18 U.S.C. § 3184, Ward v. Rutherford, 287 U.S. App. D.C. 246, 921 F.2d 286, 289 (D.C. Cir. 1990) and Rule 74 of the Local Rules of the United States District Court of the Southern District of California. This element was not challenged by the respondents.
2. The court has jurisdiction over the respondents.
The court has jurisdiction over the respondents if they are before the court. In re Pazienza 619 F. Supp. 611 (S.D.N.Y. 1985) This issue was not challenged by the respondents.
3. The treaty is in full force and effect.
The law limits extradition to circumstances where the treaty is in full force and effect. 18 U.S.C. § 3184; Argento v. Horn 241 F.2d 258 (6th Cir. 1957). Exhibit I, Appendix B was submitted by the United States in support of its position that the treaty is presently in full force and effect. The Department of States's opinion is entitled to deference. Galanis v. Pallanck 568 F.2d 234 (2nd Cir. 1977); Sayne v. Shipley 418 F.2d 679 (5th Cir. 1969) cert. denied, 398 U.S. 903, 26 L. Ed. 2d 61, 90 S. Ct. 1688 (1970).
The validity of the treaty was challenged by respondents in a motion to deny extradition on two grounds.
First, respondents argue that, "it is a tenet of international law that a treaty is invalid if there has been a fundamental change of circumstances."
(See Zamora's motion 3, filed December 7, 1993, page 6). Respondents alternatively assert that even if valid, the treaty is not being applied "in good faith" (See same motion, page 6). Rulings on both motions were deferred until these findings.
Respondents failed to adequately explain their position or point to any specific evidence which might support either theory. The court can only assume that the entirety of respondents argument is based on that portion of their presentation related to torture of the alleged co-conspirators of respondents (identified below in discussion of requirement 5) and the consequent unreliability of the statements obtained. Assuming the foregoing is the position to which respondents were referring in their arguments and motions, the assertion is dealt with in the discussion and analysis of requirement 5, below. If there is another basis, it fails for lack of proof.
4. The crimes for which surrender is sought are included within the terms of the treaty.
According to the United States' submission of December 23, 1993 and consistent therewith at the hearings, Mexico seeks extradition of the respondents for Mexican federal and state charges identified in the requesting papers.
Those offenses are:
Conspiracy, Bearing of Firearms Reserved for the Military, Storing Firearms Reserved for the Military, Damage to the Country's Transportation and Communication Infrastructure, Homicide and Attempted Homicide.
Respondents challenge the requirement of dual criminality by asserting, among other things, that the elements of the offense of Storing Firearms Reserved for the Military, one of the Mexican offenses, are absent, which is fatal to the extradition request as to that offense. U.S. v. Khan, 993 F.2d 1368, 1372 - 1373 (9th Cir. 1993).
Additionally, respondents argue that if the court is satisfied that the elements of the other offenses are set out, then the court must analyze the specific elements of each individual offense to determine if there is analogous law in the United States for each offense. Then, if the foregoing is established, the court must apply the facts to each element to see if the facts satisfy the required elements of each offense. Respondents assert that if the foregoing analysis is adopted by the court, the court cannot order the extraditability of respondents because it cannot be determined what conduct, would be violative of the Mexican laws in question. (See Zamora final argument, part II, pp. 3-8).
The first position of the respondents is, in effect, that the charges fail to satisfy the doctrine of dual criminality. The second argument goes to the issue of probable cause to extradite and will be addressed in part (5) below.
The United States, not surprisingly, takes the opposite position and responds on several fronts. First, it argues that the Appendix to the Treaty specifies certain categories of offenses for which both the United States and Mexico have agreed extradition shall take place (see Article 2, paragraph 1). Included within that list is paragraph 19, which states,
19. Offenses against the laws relating to prohibited weapons, and the control of firearms, ammunition, explosives, incendiary devices or nuclear materials.
In effect, the argument is that deference should be given to the desires of the contracting parties and the Treaty between the agreeing countries should be liberally construed to achieve those ends. Valentine v. United States ex rel Neidecker, 299 U.S. 5, 81 L. Ed. 5, 57 S. Ct. 100 (1936).
Secondly, the United States argues that the elements are not the focus of the analysis; instead, dual criminality is satisfied if the conduct is a crime in both jurisdictions. The United States cites a number of cases to the effect that the core of the examination is the act, not the crime charged. See Government's Supplemental Memorandum Re The Law of Extradition, filed February 22, 1994, pages 6 - 7.
The law of extradition requires that a fugitive be delivered up if the seeking country satisfies each extradition requirement, including that of "dual criminality", U.S. v Khan, 993 F.2d 1368, 1372 (9th Cir. 1993). Under the dual criminality doctrine, extradition is appropriate,
". . . only if the conduct complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations." United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987), cert. denied, 484 U.S. 1042, 98 L. Ed. 2d 859, 108 S. Ct. 773 (1988) (Quoting from Quinn v. Robinson, 783 F.2d 776, 791-792 (9th Cir.), cert. denied, 479 U.S. 882, 93 L. Ed. 2d 247, 107 S. Ct. 271 (1986).
Thus, if the offenses identified by Mexico in its extradition request are crimes in Mexico and in the United States, this requirement has been satisfied. United States v. Levy, 905 F.2d 326, 328 (10th Cir. 1990).
The treaty between the United States and Mexico, 31 UST 5059, TIAS 9656, effective January 25, 1980, provides, under Article 2, Paragraphs 1 and 3, in part, that:
"1. Extradition shall take place, . . . for wilful acts which fall within any of the clauses of the Appendix and are punishable in accordance with the laws of both Contracting Parties by deprivation of liberty the maximum of which shall not be less than one year.