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IN RE MAINERO

December 19, 1997

In the Matter of the Extradition of EMILIO VALDEZ MAINERO, aka Ricardo Gonzalez Leon, Ricardo Emilio Valdez-Mainero and Emilio Ricardo Valdez


The opinion of the court was delivered by: BATTAGLIA

 In the proceeding before this Court, the Republic of Mexico (hereafter Mexico), through the United States government, seeks the extradition of United States citizen, EMILIO VALDEZ MAINERO, alleged to have committed crimes in Mexico. The matter proceeded to an extradition hearing on June 30, 1997 before the Honorable Anthony J. Battaglia, United States Magistrate Judge.

 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 Attorney Gonzalo P. Curiel. EMILIO VALDEZ MAINERO was represented by retained counsel Michael Pancer.

 The court, for reasons explained below, grants the petition, finding the detainee extraditable.

 Background

 EMILIO VALDEZ MAINERO (hereinafter "Valdez" or "Respondent") *fn1" is accused by Mexico of having been involved with or committing various crimes in violation of Mexican laws. Pursuant to an extradition treaty between Mexico and the United States, Treaty 31 UST 5059, TIAS 9656 ("Treaty"), and under federal laws supplementing and implementing such treaties, 18 U.S.C. 3184, et seq., the United States issued a provisional arrest warrant for the Respondent, signed by Magistrate Judge Anthony J. Battaglia on September 30, 1996. *fn2" The warrant was issued on a Complaint charging Respondent with carrying a firearm exclusively reserved for the military in violation of Articles 160 and 162, paragraph 3, Criminal Code for the Federal District. This resulted in the arrest of Valdez on September 30, 1996. Valdez was ordered detained following arraignment. A Supplemental Complaint was filed and Respondent was arraigned thereon on October 16, 1996. The Supplemental Complaint charged Respondent with criminal association under Article 164, paragraph 1 and Article 13, section 2 of the Penal Code for the Federal District. Valdez moved the Court for release under the special circumstances doctrine. The Court denied the motion. *fn3"

 The United States filed certified documents in support of the extradition request at various times, the first of which was on December 4, 1996. The certified documents included diplomatic note 001831 dated November 25, 1996 from the Embassy of Mexico formally requesting the extradition of Respondent on the firearms and conspiracy charges. Additional documentation *fn4" (specifically related to the first degree murder and carrying a firearm exclusive to the Army, Navy and Air Force) were submitted by diplomatic note No. 000012 dated January 3, 1997. The filing of certified documents permitted Mexico to go forward with the extradition proceeding under the Treaty. Prior to the June 30, 1997 evidentiary hearing on the extradition requests, there were numerous other filings by the United States and by counsel for the detainee as well as several status hearings.

 On July 29, 1997, Respondent filed a Motion to Reopen Evidence in this matter. Specifically, Respondent sought "all witness statements submitted in General Gutierrez Rebollo's case to determine whether or not there is additional relevant testimony." While the motion was denied, the Court did find good cause to order the production of further evidence described by the United States in its responsive papers as becoming available since the June 30, 1997 extradition hearing. Specifically, the Court ordered the United States to file copies of videotapes of Alejandro Hodoyan's deposition; evidence including Respondent's statements regarding the circumstances surrounding the 1997 abduction of Alejandro Hodoyan and the genesis of the March 3, 1997 declaration by Alejandro Hodoyan *fn5" ; and, all statements, recordings, transcriptions and memoranda of interviews by the assistant U.S. Attorney and federal agents of Alejandro Hodoyan. *fn6" The Court also directed the United States to request from Mexico, a signed statement of Seargent Ruiz and evidence of all dates of arrest after September 1, 1996 of witnesses Soto, Alejandro Hodoyan, Francisco Cabrera Castro and Gerardo Cruz Pacheco. *fn7"

 Mexico has filed the videotapes, the evidence concerning Respondent's statements regarding the 1997 abduction of Alejandro Hodoyan and the genesis of the March 3, 1997 Declaration by Alejandro Hodoyan, as well as the statements by Alejandro to U.S. agents. Mexico did not produce a signed statement of Sergeant Ruiz or evidence of dates of arrest of the referenced witnesses. *fn8" Additional written argument was entertained from counsel and submissions in this regard were completed on October 14, 1997. On October 22, 1997, the Court issued an Order directing the United States Attorney to produce photographic evidence referenced in witness statements and related to the issue of the identity of Respondent. The date of production for the photographic evidence was set for November 5, 1997 *fn9" and later extended with properly authenticated and certified originals being filed on December 1, 1997.

 Discussion

 Description of Alleged Offenses and Involvement of Respondent

 The Republic of Mexico seeks to extradite Valdez to answer the following charges:

 (1) Carrying a firearm exclusive to the Army, Navy and Air Force on or about April 9, 1996 in violation of Article 83, Section II, in accordance with Article 11, Section (b), of the Federal Law of Mexico on Weapons and Explosives *fn10"

 (2) Criminal Association between 1994 and September 14, 1996 in violation of Article 164, Paragraph 1 in accordance with Article 13, Section II, of the Penal Code for the Federal District *fn11" ; and,

 It is alleged that Respondent was involved in criminal activities within the Arellano-Felix drug trafficking organization (hereinafter AFO). Respondent's role is alleged to have included, among other things, the planning and carrying out of assassinations of people perceived to be enemies of the AFO, including rival drug traffickers and law enforcement officials. It is also alleged that Respondent was in charge of cocaine and marijuana shipments for the AFO and as a leading member of the organization, was responsible for assigning code names to the other members.

 Concerning the murder and firearms charge, it is alleged that on April 9, 1996, at approximately 9:30 p.m., in the restaurant at the Holiday Inn in Toluca, Mexico, Jesus Gallardo Vigil, aka "El Bebe", (hereinafter "Gallardo"), and Jesus Sanchez Angulo (hereinafter "Sanchez") were shot and killed by Respondent and Fabian Martinez Gonzalez, aka "Tiburon", (hereinafter "Martinez"). According to the allegations, earlier on April 9, 1996, Valdez, Martinez, and Isaac Contreras Ayala, aka "Calaco", (hereinafter "Contreras") were awaiting the arrival of Gerardo Cruz Pacheco, aka "Capitan", (hereinafter "Cruz") at the Glorieta del Angel. Valdez, Martinez and Contreras, were carrying small weapons in a white Volkswagen. Martinez instructed Contreras and Cruz to drive a navy blue Cutlass to the Holiday Inn in Toluca. The others drove in a white Volkswagen.

 At approximately 9:00 p.m., the two cars arrived at the Holiday Inn, Toluca. Valdez and Martinez got out of the car. Valdez told Contreras, "Wait for me here and when you see us leave the parking lot in the white Volkswagen, make a wall so that we won't be followed".

 At approximately 9:30 p.m. Valdez and Martinez encountered Gallardo whom Valdez planned to assassinate. Valdez shot and killed Gallardo as well as Sanchez who happened to be in the corridor at the time of Gallardo's murder.

 Valdez and Martinez then fled the Holiday Inn in the white Volkswagen. The others in the navy blue Cutlass also left the Holiday Inn and caught up with the white Volkswagen at the village of San Mateo Atenco. There, Valdez told the group, "The Baby' paid me off. Nobody threatens my brother because the moron who does it, dies." *fn12"

 Treaty Requirements and Necessary Documentation

 Under Article 10 of the Treaty, the request for extradition is required to contain the description of the offense for which extradition is requested and shall be accompanied by:

 (1) A statement of the facts of the case;

 (2) The text of the legal provisions describing the essential elements of the offense;

 (3) The text of the legal provisions describing the punishment for the offense;

 (4) The text of the legal provisions relating to the time limit on the prosecution of the offense; and,

 (5) The facts and the personal information of the person sought which will permit his identification and, where possible, information concerning his location;

 (6) A certified copy of the warrant of arrest issued by the judge or judicial officer [in Mexico]; and,

 (7) Evidence which, in accordance with the laws of the requested party, would justify the apprehension and commitment for the trial of the person sought if the offense had been committed there, (i.e., probable cause).

 Respondent does not dispute that the Treaty requirements have been met with regard to these items with three exceptions. As to item 7, the sufficiency of the evidence, Respondent contends that the probable cause element has not been met and, therefore, there is no justification for his apprehension and commitment for extradition to Mexico. 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. *fn13" The diplomatic note related to the initial firearms charge *fn14" 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. *fn15" 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). *fn16" 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 ...


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