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IN RE GARCIA

September 16, 1994

In the Matter of the Extradition of CARLOS ENRIQUE GARCIA (1), JESUS ZAMORA-SALAS (2)


The opinion of the court was delivered by: PAPAS

 In the proceeding before this court, the Republic of Mexico (hereafter Mexico), through the United States government, seeks the extradition of two United States citizens, Carlos Enrique Garcia, and Jesus Zamora-Salas, alleged to have committed crimes in Mexico. The court, for reasons explained below, grants the petition, finding the detainees extraditable.

 The interests of Mexico were represented by the United States through the United States Department of Justice, by United States Attorney Alan D. Bersin and Assistant United States Attorneys John P. Pierce and Alberto Arevalo. Carlos Enrique Garcia was represented by retained counsel Michael Littman. Jesus Zamora-Salas was represented by retained counsel David Cohen of Cohen, Hubacheck & Riggs.

 BACKGROUND

 The United States filed documents in support of the extradition requests at various times, the first of which was on September 23, 1993. *fn3" Between that date and the evidentiary hearings on the extradition requests, there were numerous other filings by the United States and by counsel for the detainees as well as several status hearings. Respondents made a substantial number of motions, *fn4" decisions on which were all, except for one, *fn5" deferred, by consent among the parties, until this order on the evidentiary hearings.

 Most of the motions by respondents were evidentiary in nature. Each is addressed below in the discussion of the required proof.

 Respondents also requested delays of the start and conclusion of the evidentiary hearing dates in order to adequately investigate and present their responses to the petitions for extradition. As a result, the formal evidentiary hearings took place on April 5, 1994, April 6, 1994, April 28, 1994, May 9, 1994 and May 19, 1994. The hearings concluded with receipt of written final arguments of each party by the court on June 3, 1994.

 DISCUSSION

 Description of alleged offenses and involvement of respondents.

 The Republic of Mexico seeks to extradite respondents to answer to charges of homicide, attempted homicide, conspiracy, possession of firearms reserved for the military, storing of firearms reserved for the military, and, damage to the country's transportation and communication infrastructure (see Exhibit I). *fn6" Those offenses are alleged to be violations of Mexican laws, in particular, Article 83, Parts I, II and III, of the Federal Law on Firearms and Explosives; Articles 164 and 399 of the Federal penal Code; and, Article 533 of the Law on Highways, Waterways, Railroads and Other Transportation Infrastructure for the Federation of Mexico. *fn7" (Extradition I: 431-442.)

 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).

 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." *fn8" (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 ...


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