The sufficiency of the evidence (i.e., probable cause) will be discussed hereinafter.
Respondent also challenges compliance with the Treaty, and urges his release in these proceedings, relative to the "late filing" of certified documents in this case. Specifically, Respondent asserts that evidence included in the second extradition packet should not be received or considered by the Court. No case authority is offered on this issue. This assertion relates specifically to the supplemental filing of evidence regarding the first degree murder charge on January 14, 1997 and the weapons charge related to the events and circumstances of April 9, 1996. In this regard, Respondent cites Article 11, Paragraph 3 of the Treaty. As described herein, the Court does find that the Republic of Mexico has met the documentary and timeliness requirements of the Treaty.
Respondent's reliance upon Article 11, Paragraph 3, is misplaced. Article 11, Paragraph 3, provides that the provisional arrest "shall be terminated" if the United States does not receive the formal request for extradition and the necessary documents specified in Article 10 within 60 days after the detainee's apprehension. The United States, in fact, complied with Article 11, Paragraph 3, by its initial filing of diplomatic note 001831, on November 25, 1996 with the U.S. Embassy in Mexico.
The diplomatic note related to the initial firearms charge
and the criminal association charge. After receipt of the diplomatic note, Respondent was then held under the formal request for extradition and not the provisional arrest which had initiated the case.
The later supplementation of the record and the supplementation of Mexico's request for extradition, with additional charges, are not inconsistent with the Treaty or its provisions. Respondent was afforded due process with a full opportunity to review and respond to the supplemental materials. The Extradition Hearing was continued on several occasions after the January 14, 1997 filing, with the consent of the parties, to allow for further preparation and response to the evidence. Ultimately, the United States sought to stay the proceedings for an additional ninety (90) day period. The government's request for the stay was denied sustaining Respondent's objection and request to proceed. As a result, the Court finds Treaty compliance in this respect and denies Respondent's request for release on this basis.
Respondent also cites Title 18 U.S.C. § 3188 for a similar proposition. No case authority is offered in this regard. While § 3188 requires the United States to deliver a person committed for extradition to a foreign government within two months, that provision has no application to the proceedings in this case, at this stage, as commitment does not occur prior to the certification of the Respondent's extraditability by the Court. Barrett v. United States, 590 F.2d 624 (6th Cir. 1978). For this reason, Respondent's challenge in this regard is denied.
Finally, Respondent filed FINDINGS OF MEXICAN LAW EXPERT RODOLFO GASTELUM PEREZ RE: ABSENCE OF PROBABLE CAUSE; SYNOPSIS; AND CURRICULUM VITAE which asserted procedural, substantive and constitutional infirmities under Mexican law in the extradition request and in the arrest warrant. The long list of challenges to the probable cause finding in Mexico and the other alleged infirmities are not fully set forth herein as the Court finds the opinions of Attorney Gastelum are irrelevant to these proceedings.
Under Article 10(7) of the Treaty, the probable cause determination is to be made in accordance with the laws of requested party (here, the United States). Under United States law, the standard of probable cause is whether there is any evidence warranting the finding that there was reasonable ground to believe the accused guilty. Fernandez v. Phillips, 268 U.S. 311, 69 L. Ed. 970, 45 S. Ct. 541 (1925); the probable cause is sustained if competent evidence to establish reasonable grounds is presented, not necessarily evidence competent to convict. Collins v. Loisel, 259 U.S. 309, 317, 66 L. Ed. 956, 42 S. Ct. 469 (1922). If the drafters of the Treaty had intended the judicial officer to consider the admissibility and weight of the evidence under the law of the requesting party (i.e. Mexico), they could have easily added that provision. In the Matter of the Extradition of Lui Kin Hong, 939 F. Supp. 934 (D. Mass. 1996).
Further, it is not the responsibility of this Court to assess the probability that the requesting party will be able to secure a conviction. Id. at 592.
Finally, the scope of admissible evidence in an extradition hearing is guided by the distinction between contradictory and explanatory evidence. Republic of France v. Moghadam, 617 F. Supp. 777 (N.D. Cal. 1985). Attorney Gastelum's opinions are contradictory, at best, and excludable on that basis. Respondent has no right to rebut prosecutorial evidence (here, the basis and procedural compliance with the laws of Mexico as well as the determination of probable cause to issue the warrant in Mexico). Simmons v. Braun, 627 F.2d 635, 636 (2d Cir. 1980). Those issues will ultimately be resolved by the trial court, along with the sufficiency of the evidence regarding guilt. Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir. 1971), cert. denied, 405 U.S. 989 (1972).
Nature of Hearing and Requisite Elements for Extradition
Under 18 U.S.C. § 3184, et seq., in order to extradite the Respondent, 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 Respondent participated in or committed them. 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. U.S., 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 certificate of extraditability. The certificate is forwarded to the Department of State. The Secretary of State makes the ultimate decision on whether to surrender the Respondent. 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 Civil Rules of the United States District Court of the Southern District of California. This element was not challenged by the Respondent.
2. The court has jurisdiction over the Respondent.
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 Respondent.
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). A certified copy of the extradition Treaty between the United States of America and Mexico of May 4, 1978 (TIAS 9656) was submitted by the United States in support of its position that the Treaty is presently in full force and effect. The Department of State's opinion is entitled to deference. Galanis v. Pallanck, 568 F.2d 234 (2d 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).
Respondent asserts that the Treaty in this instance is invalid due to changed circumstances. Specifically, Respondent submits that the Treaty is invalid because the use of torture in Mexico in obtaining evidence, including the evidence in this matter, is contrary to the law of the United States. Respondent also asserts that not only have the governing administrations changed in Mexico and the United States since the 1978 signing of the Treaty, but the purpose and intent of the parties is materially different from what it was at the time the Treaty was signed. No precise authority is offered in regard to this premise.
In fact, the prevailing authorities are clear that:
The decision to honor or reject a treaty partner's request for extradition can have important foreign policy implications. For this reason, the final decision to extradite (or not) has long been recognized to be the prerogative of the branch of government that is primarily responsible for the conduct of foreign affairs--the executive branch, acting through the Secretary of State. See 18 U.S.C. § 3186. In The Matter of the Extradition of Lui Kin-Hong, 939 F. Supp. at 958.