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IN RE MAINERO

October 18, 1996

IN THE MATTER OF THE EXTRADITION OF EMILIO VALDEZ MAINERO


The opinion of the court was delivered by: BATTAGLIA

 I

 Background

 On October 1, 1996, Valdez was arraigned on the complaint. The matter was set for a bail hearing on October 9, 1996. Prior to the hearing, Mr. Valdez filed a written motion in support of bail and the U.S. Attorney's Office has filed an opposition. The hearing proceeded before Magistrate Judge Battaglia on October 9, 1996, as scheduled, and the issues were submitted for decision.

 II

 Statement of Facts

 The complaint filed on September 30, 1996 sets out the underlying facts supporting the charge of carrying a firearm reserved for the armed forces. The facts provided through diplomatic channels allege that on April 19, 1994, Valdez was stopped by Tijuana City Police officers while he was carrying a .38 caliber firearm with two loaders and 26 usable cartridges of the same caliber. The firearm was manufactured in the United States. The allegations also assert that Valdez was arrested as the passenger of a Chrysler sedan on the provisional arrest warrant. At the time of his arrest, a vehicle search revealed a two way radio, and three cellular phones. The driver of the vehicle was Alfredo Hodoyan-Palacios. Hodoyan is charged in Mexico with the murder of four individuals which forms the basis of a provisional arrest warrant for Hodoyan. In addition, at the residence where Valdez was residing, federal agents executed a search warrant and found an AK-47 assault rifle. Hodoyan later claimed that he had possessed the assault rifle found at Valdez' residence.

 At the hearing, the Assistant U.S. Attorney asserted that the provisional arrest would be further supported by charges involving a homicide. In this regard, the government filed the DECLARATION OF FRANCISCO MOLINA RUIZ IN SUPPORT OF GOVERNMENT'S RESPONSE AND OPPOSITION TO MOTION FOR BAIL. The Ruiz Declaration describes (at page 1) Mr. Valdez as "a highly dangerous armed person, who belongs to an organized criminal group which is dedicated to drug trafficking and other crimes". The Declaration goes on to allege Mr. Valdez's involvement in criminal conduct in Mexico including homicide and drug trafficking.

 Mr. Valdez asserts that he is a lawful permanent resident in the United States having had a green card for 16 years. Mr. Valdez is 33 years old and is employed in the real estate business, collecting rent on family owned properties in Tijuana. He states he has strong ties to San Diego and Tijuana, and is married and has three minor children, ages 6, 4 and 2. Mr. Valdez has no criminal record and submits that special circumstances to justify bail include his highly likely success in opposing extradition due to the lack of dual criminality *fn1" on the firearms offense alleged in this matter. Mr. Valdez was supported at the hearing by the presence of his wife, mother, mother-in-law, three brothers-in-law, three sisters-in-law and three friends.

 Mr. Valdez proposes that his mother can mortgage her Tijuana home of 38 years and post § 100,000 cash as security for bail. Mr. Valdez also submits that bail would be available to him on the firearms offense in Mexico and that, if convicted, the gun offense would likely result in a two year suspended sentence.

 On October 15, 1996 a SUPPLEMENTAL COMPLAINT FOR PROVISIONAL ARREST WITH A VIEW TOWARD EXTRADITION was filed. The Supplemental Complaint states, among other things, that on October 9, 1996, Mr. Valdez was charged in Mexico with the crime of criminal conspiracy (Article 164, paragraph 1, and Article 13, section II of ...


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