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IN RE POWELL

April 9, 1998

IN THE MATTER OF THE EXTRADITION OF ANGELA CHRISTINE POWELL


The opinion of the court was delivered by: PAPAS

ORDER DENYING EXTRADITEE'S MOTION TO EXCLUDE EVIDENCE, MOTION FOR FRANKS HEARING, MOTION TO ALLOW EVIDENCE, MOTION FOR DISCOVERY AND DENYING THE USA'S MOTION TO DISALLOW EVIDENCE AND PREVIOUS MOTIONS

 Statement of Facts:1

 On August 7, 1997, at approximately 10:10 p.m., Extraditee Angela Powell (hereafter "Powell") and a male companion, Andre Peart (hereafter "Peart") entered the U.S. from Mexico via San Ysidro. They were the sole occupants in a 1992 BMW belonging to Alfons Schreiber of Chula Vista, California. Peart was the driver and Powell was the sole passenger.

 When the car reached the primary inspection area, Inspector Mynatt asked Peart for identification. When Peart was unable to produce identification, he was referred to the secondary inspection area. Once in the secondary area, Peart was asked to turn off the engine and give the keys to Mynatt. Instead of complying, Peart hesitated, punched the accelerator and reached for the gear shift lever. Mynatt removed Peart's hand from the gear shift lever and ordered Peart from the vehicle several times. During this incident, Peart reached towards his waistband. Once Peart was out of the car, he was patted down and a .25 caliber pistol was removed from his waistband. Peart became combative, broke away from inspectors, and attempted to flee. He was caught and handcuffed.

 Powell was also removed from the car and handcuffed. Once inside the INS office, Powell started to complain of severe abdominal pains and told inspectors she thought she was having a miscarriage. Powell was taken to the hospital by paramedics.

 At the hospital, Powell was able to walk normally from the gurney to the examination room. According to nurses at the hospital emergency room, Powell showed no signs of having a miscarriage when she arrived. Powell behaved in a nervous manner and several times asked if she could leave the hospital. Powell also asked the nurse at least five times whether she was under arrest and if the police were outside.

 As the nurse helped Powell undress for the exam, she noticed Powell was wearing quite a bit of jewelry, including several neck chains, rings and very expensive looking pearl earrings. The dress Powell was wearing was a gold gown that, along with the jewelry, contrasted with the filthy underwear Powell was wearing.

 After drawing blood from Powell and stepping out of the room, the nurse overheard Powell talking on the phone. According to the nurse, she heard Powell tell the other party to come and get her right away. Powell also told the other party that she had done something for which she could get life. When the nurse re-entered the room, Powell was sitting on the bed counting cash. Powell subsequently removed her own IV drip, dressed and quickly left the hospital.

 On August 8, 1997, one day after the above scenario took place, INS contacted the stepson of Alfons Schreiber, the owner of the vehicle in which Peart and Powell were stopped the day before. After being advised of the situation, the stepson went to Schreiber's residence in Rosarito, Mexico and found the bodies of Schreiber and his wife, Blanca Magdalena de la Rosa. Schreiber was found dead on the floor with a belt around his neck, a plastic bag over his head, and his face crushed. A bloody dumbbell was found nearby. Schreiber's wife was found dead in another room, laying on the bed with a pillow over her face and several gunshot wounds to her head.

 On August 9, 1997, investigators from Mexico accompanied U.S. investigators to an interview with Peart regarding the murders. Peart refused to speak with them. Also on this date, investigators spoke with Thomas Powell, a man who was identified as Powell's ex-husband. Thomas Powell told investigators that he had spoken to Powell earlier that day when she came to visit their children. He described Powell as wearing new sandals and a new dress, hair dyed black and cut very short. He also said Powell had a big roll of cash in her possession.

 Thomas Powell also told investigators that Powell told him she had killed a guy in Mexico with her bare hands because he farted in her face. Powell indicated to Thomas Powell that the ATF was after her and had already been to the place in Escondido where she had previously stayed. Powell told him she had to get out of town. He told investigators that Powell had arranged to return the next day, August 10, 1997, to take their children shopping. However, on the morning of August 10, 1997, he called investigators and told them she had changed her mind and would not be coming.

 Also on August 9, 1997, investigators spoke with Powell's mother, who told investigators that she felt Powell was in hiding because she had gotten involved with some bad company and was in "real trouble." Later in the day, Powell's mother contacted investigators and told them she had learned Powell was in fact hiding, and wanted to leave town, because the police wanted her to testify against Peart.

 The next day, agents followed Powell's mother to a meeting with Powell at the North County Fair Mall in Escondido, California. When Powell arrived, agents took her into custody and transported her to the Escondido Police Station. At approximately 11:15 p.m., Powell was read her Miranda rights by Agent Johnson. Powell invoked her Miranda rights and stated she did not want to answer any questions. The following is an excerpt from the investigation report that details the agents' next step in the process:

 
"Johnson explained to POWELL that later in the booking process she would be given Torres' telephone number, and that she could contact Torres after consulting with her attorney if she so desired.
 
Johnson told POWELL that investigators knew all about the murders in Rosarito, about POWELL and Peart taking the BMW and being detained by INS at the border. Johnson also told POWELL that investigators knew she had gone to Scripps Hospital and had been staying in various residences in San Diego County. Johnson told POWELL that given the fact she had witnessed a murder, friends or relatives of Peart might also be looking for her. Johnson told POWELL that an interview, with her lawyer present, could be set up very easily if she decided to talk to investigators. Johnson then told POWELL that if she changed her mind and decided to talk to investigators, she would have to initiate contact -- that since she had requested a lawyer, investigators would not be asking her to answer anything but personal information for booking purposes.
 
Torres *fn2" then explained that investigators were planning to take the jewelry that POWELL had in her possession when she was arrested and show it to the victims's family. Torres explained that if the victim's identified any of the pieces of Jewelry, POWELL would be implicated in the murders. Torres asked if POWELL still wanted to talk to an attorney before answering questions, and POWELL said she would answer questions.
 
She said she was concerned for the welfare of her children and asked if she cooperated, would the government protect them? This information was relayed to AUSA Wheat, who said every effort would be made to protect POWELL'S children. POWELL said she wasn't sure which questions she would answer, but that agents could go ahead and ask."

 After Johnson and Torres explained the evidence to Powell, she decided she would allow the agents to interview her. In essence, she told them the following: Powell and Peart went to the Schreiber's home in Rosarito, Mexico and pretended they were having car trouble. They convinced the Schreibers to drive them around Rosarito until Peart ultimately pulled a gun and forced the Schreibers to return to their residence.

 Once at the residence, Peart tortured Mr. Schreiber while Powell held Mrs. Schreiber at gunpoint in another room. At one point, Peart asked Powell to hand him a dumbbell, which she did. Powell left the room, but returned later and found Peart on top of Mr. Schreiber, choking him with a belt, while Mr. Schreiber's head was covered by a plastic bag. At Peart's request, Powell sat on Mr. Schreiber's legs to hold them still. Powell told agents that Mr. Schreiber's head had been caved in.

 Once Mr. Schreiber was killed, Peart went into the next room and shot Mrs. Schreiber in the head, killing her. Powell and Peart then took money, jewelry, coins, credit cards and banking information from the residence. Powell and Peart left Rosarito in the Schreiber's BMW and were subsequently detained at the border crossing.

 Powell told agents that, after leaving the hospital, she made contact with several friends, two of whom were "Gary" and "Donnie". She said she gave "Donnie" a bag of jewelry and some credit cards because she needed money to bail Peart out of jail. She gave "Gary" a very expensive gold and diamond tennis bracelet she had taken from the Schreibers. "Gary" and "Donnie" were both subsequently identified and contacted by investigators. Both confirmed Powell's story as it related to them. Property belonging to the Schreibers was recovered from both men.

 "Donnie" also told investigators that Powell had told him Peart had been arrested earlier at the border for carrying a firearm and that they had murdered an elderly couple in Mexico, and stole property from them, including the couple's BMW.

 The recovered property was later identified by the victims' children as belonging to the victims. Ballistics tests matched the casings from the scene in Rosarito to the gun carried by Peart. The gun was registered to Mr. Schreiber. Powell was subsequently arrested and held for extradition.

 DISCUSSION

 Powell makes four motions: 1) Motion to Exclude Evidence, 2) Motion for Franks Hearing, 3), Motion to Allow Evidence and 4) Motion for Discovery. *fn3" Each is discussed separately below.

 POWELL'S Motion to Exclude Evidence

 The first motion raised by Powell is entitled "Motion to Exclude Evidence." While not directly raised by Powell, her motion raises the Constitutional issue of whether Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) (hereafter " Miranda ") and its required warnings are applicable in the context of an extradition proceeding. If Miranda does apply, then the court must decide whether certain statements obtained while Powell was in custody, and all evidence obtained as a result of those statements, must be suppressed.

 Is Miranda applicable to extradition hearings?

 Powell takes no position regarding the applicability of Miranda to extradition hearings, but merely assumes it applies and argues Miranda was violated by the custodial officers. According to Powell's Motion, at pp. 4-6, Powell, upon being read her rights under Miranda, stated she did not want to answer any questions and asked for a lawyer. Agents then explained to Powell the evidence they had and how they would use it against her. After this explanation, Powell was again asked if she wanted to speak with an attorney.

 In her motion, Powell cites a litany of cases dealing with the applicability of Miranda to criminal cases adjudicated in the United States. (See Powell's Motion, at pp. 3-8.) Powell offers no authority for the proposition that Miranda applies in the venue of a non-criminal extradition proceeding other than references to U.S. v. Kin-Hong, 110 F.3d 103, 120 (1st Cir 1997), reh'g en banc den'd, Lui v. U.S., 520 U.S. 1206, 117 S. Ct. 1491, 137 L. Ed. 2d 816 (1997), and Esposito v. Adams, 700 F. Supp. 1470, 1479, n.9 (N.D. Ill., 1988).

 Powell contends that because her confession was obtained as a result of a violation of Miranda, it was involuntary and must be excluded along with all of the other information she gave to the agents interrogating her. [Powell's Motion, at pp. 7-8, citing to Townsend v. Sain, 372 U.S. 293, 307, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1962), United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981), Hutto v. Ross, 429 U.S. 28, 30, 50 L. Ed. 2d 194, 97 S. Ct. 202 (1976), and U.S. v. Bautista-Avila, 6 F.3d 1360, 1364 (9th Cir. 1993)].

 In summary, Powell claims:

 1. All statements made by her should be suppressed;

 2. All evidence obtained as a result of her statements must be excluded under "fruits of the poisonous tree" doctrine;

 3. The affidavits used to obtain the warrants must be excluded because they were based on the above allegedly illegally obtained evidence; and,

 4. There is now insufficient evidence on which to extradite her.

 The Republic of Mexico's (hereafter the "government") position is naturally contrary to Powell's. The government asserts Miranda itself limits "Miranda warnings" to "criminal defendants in U.S. courts" and that Miranda dealt with issues of "American criminal jurisprudence" and was concerned with "the protection of rights at trial." (See Opposition Response, at pp. 6-7.) Thus, the government argues, since extradition proceedings are not criminal in nature, and are controlled by 18 U.S.C. § 3184 and § 3190, Miranda does not apply. (Ibid.) Also, since Miranda is not applicable to extradition proceedings, the exclusionary rule is also inapplicable.

 In summary, the government asserts the following;

 1. Miranda is not applicable to extradition proceedings,

 2. A Miranda hearing would violate the U.S/Mexico Extradition Treaty,

 3. 18 U.S.C. § 3184 does not authorize Miranda Hearings,

 4. 18 U.S.C. § 3190 governs the admissibility of statements in extradition proceedings, and

 5. The exclusionary rule is inapplicable to extradition proceedings because it would punish foreign countries for the actions of U.S. agents.

 Analysis:

 The well established general rule is that an extradition hearing is not a criminal proceeding, and the person whose return is sought is not entitled to the rights available in a criminal trial at common law. Extradition of Garcia, 890 F. Supp. 914, 923 (S.D.Cal. 1994). (Citations omitted) A Magistrate Judge's function is to determine whether there is "any" evidence establishing reasonable or probable cause. Ibid. Pursuant to 18 U.S.C. § 3184, a Magistrate Judge has no discretion whether to extradite: if the Magistrate Judge "deems the evidence sufficient to sustain the charge," then the magistrate "shall" certify for extradition. Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9th Cir. 1997). 18 U.S.C. § 3190 provides that items offered into evidence "shall be received and admitted as evidence. . . if they shall be properly and legally authenticated" by the requesting country. Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988)(No error for District Court to refuse to consider admissibility of evidence when it has been properly authenticated.).

 Also, The Fifth Amendment states, in pertinent part, "No person . . . shall be compelled in any criminal case to be a witness against himself." (emphasis added) The Courts have interpreted the language of this clause "as written," meaning that the Fifth Amendment privilege against self-incrimination pertains only to criminal cases. Esposito v. Adams, 700 F. Supp. 1470, 1478 (N.D. Ill. 1988). The Fifth Amendment has been compared to the Sixth Amendment guarantee of a speedy trial, which has been held inapplicable to an extradition proceeding because it applies only to "criminal prosecutions", and an extradition proceeding is not a "criminal prosecution." (Ibid., citing to Jhirad v. Ferrandina, 536 F.2d 478, 485 n. 9 (2d Cir.), cert. denied, 429 U.S. 833, 97 S. Ct. 97, 50 L. Ed. 2d 98 (1976). Similarly, the Fifth Amendment guarantee against double jeopardy does not apply to extradition for the same reasons. Collins v. Loisel, 262 U.S. 426, 429, 43 S. Ct. 618, 619, 67 L. Ed. 1062 (1923).

 However, the Fourth Amendment and the Due Process Clause of the Fifth Amendment have been applied to extradition hearings in the limited context of arrest and detention without bail. Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997), citing Parretti v. United States, 122 F.3d 758, 770, (rehearing en banc granted, 124 F.3d 1186) (9th Cir. 1997).

 The great weight of the authority cited above indicates that Miranda does not apply to extradition proceedings. The Ninth Circuit spoke very clearly in Oen Yin-Choy when it said "authentication is the only requirement for admissibility of evidence under general United States extradition law." Oen Yin-Choy, 858 F.2d at 1407. Any claim as to the admissibility of evidence should be heard in the court of jurisdiction. In this case, assuming extradition, the court of jurisdiction is in Mexico.

 However, Powell argues Miranda does apply and supports her contention by citing to Esposito v. Adams, supra, and U.S v. Kin-Hong, supra. Powell relies on hypothetical conjecture found in Esposito at footnote 9, which states in pertinent part:

 
Even if the court found an abuse had taken place, the correct remedy would be suppression of the "fruits" . . . Courts have been reluctant to impose such sanctions on the basis that illegal conduct of (U.S. agents) should not penalize the requesting country . . . and sanctions against the (U.S. agents) would not serve a deterrent effect.

 The Esposito court rejected Powell's argument that the Fifth Amendment should apply to extradition proceedings by interpreting "the language of the self-incrimination clause as written," meaning that it applies only in "any criminal case." Esposito, at 1479. However, the court hypothesized as to the result if the Fifth Amendment did apply. Ibid. The court determined there was no Miranda violation, but if there was, the only result would be suppression of the "fruits" which, in that case, still left sufficient probable cause to extradite. Ibid. ( Esposito, supra, at footnote 9; emphasis added.)

 The Kin-Hong court stated that a probable cause standard necessarily requires a determination that the evidence is both sufficiently reliable and of sufficient weight to warrant the conclusion that ...


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