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IN RE VALDEZ-MAINERO

May 8, 1998

IN THE MATTER OF THE EXTRADITION OF GABRIEL ALFREDO VALDEZ-MAINERO

CYNTHIA G. AARON, United States Magistrate Judge.


The opinion of the court was delivered by: AARON

CERTIFICATION OF EXTRADITABILITY AND ORDER OF COMMITMENT

This is a proceeding under 18 U.S.C. § 3184 pursuant to a request by the Republic of Mexico for the extradition from the United States to Mexico of Gabriel Alfredo Valdez-Mainero, under the provisions of the Extradition Treaty Between the United States of America and the United Mexican States, May 4, 1978 ("Treaty").

 I.

 Procedural History and Factual Background

 On February 4, 1997, the Judge of the Fourth District Court for the State of Baja, California, Mexico issued an arrest warrant for Gabriel Alfredo Valdez-Mainero for the crime of Illegally Bringing into the Country a Firearm Reserved for the Exclusive Use of the Mexican Army, Navy, and Air Force.

 The Mexican Court's summary of the evidence upon which the court relied in issuing the arrest warrant for Valdez, as set forth in documents which accompanied the Formal Request for Extradition, *fn1" indicate that in 1993, Mexican law enforcement agents executed a search warrant at Valdez's home, located at Calle Hipodromo number 11, Colonia Hipodromo, Tijuana, Baja California, Mexico. During the search, law enforcement agents found a number of firearms, including a nine millimeter semiautomatic pistol. At the time of the search, Valdez gave a statement in which he admitted that the pistol belonged to him. Valdez said that he had purchased the pistol in the United States at a weapons shop in National City approximately one and one-half years earlier, and that he bought the pistol for his own protection. Valdez also stated that he was an amateur pistol shooter in California. He admitted that he brought the pistol into Mexico in his vehicle without having obtained authorization from government authorities to do so. *fn2"

 In addition to the record of the search of Valdez's residence and his statements, the Mexican Court had before it a Bureau of Alcohol, Tobacco and Firearms document entitled, "Firearms Transaction Record," showing that on June 16, 1992, Gabriel Valdez-Mainero purchased, in the United States, a nine millimeter pistol with the same serial number as the pistol found during the search of Valdez's residence in Tijuana. Based upon this evidence, the Mexican Court issued an arrest warrant for Valdez for the crime of Illegally Bringing Into the Country a Firearm Reserved for the Exclusive Use of the Mexican Army, Navy and Air Force.

 On June 16, 1997, the United States Attorney for the Southern District of California filed a Complaint for Provisional Arrest with a View Toward Extradition against Gabriel Alfredo Valdez-Mainero on behalf of the Republic of Mexico. The Complaint contained a recitation of the underlying facts of the criminal charges, alleged that the offense with which Valdez was charged was an extraditable offense under the extradition treaty between the United States and Mexico, and stated that Valdez was located within the City of San Diego.

 This Court issued an arrest warrant for Valdez based upon the allegations in the Complaint for Provisional Arrest. He was arrested on June 17, 1997, and made his first appearance in this matter on June 18, 1997. On August 22, 1997, the government filed a Formal Request for Extradition, on behalf of the Republic of Mexico. On September 26, 1997, Valdez filed a Motion re: Detainee's Response to Extradition Request,3 together with a memorandum of points and authorities, in which he opposed the request for extradition. The United States Attorney's Office filed a Response and Opposition to Detainee's Opposition to Extradition Request on October 10, 1997. Valdez filed a Reply to Government's Response re: Extradition on October 22, 1997, and the United States Attorney's Office filed a Response and Opposition to Detainee's Reply to the Government's Response re: Extradition on November 7, 1997.

 This Court held the first of two hearings regarding legal challenges to the extradition request on November 13, 1997. On December 12, 1997, the government filed Supplemental Points and Authorities in Support of Extradition Request, and a Submission of Supplemental Documents in Support of Extradition Request. On January 8, 1998, Valdez filed a Reply to Government's Supplemental Points and Authorities in Support of Extradition Request. On February 23, 1998, this Court held the second and final substantive hearing in this case.

 II.

 Discussion

 A. Requirements for Extradition

 The Republic of Mexico seeks to extradite Valdez from the United States to Mexico to face a charge of illegally bringing into Mexico firearms reserved for the exclusive use of the military. Because the executive branch of government is charged with conducting foreign relations, the role of this Court in extradition proceedings is limited. Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978) (citing Fernandez v. Phillips, 268 U.S. 311, 312, 69 L. Ed. 970, 45 S. Ct. 541 (1925)); Shapiro v. Secretary of State, 162 U.S. App. D.C. 391, 499 F.2d 527, 531 (D.C. Cir. 1974), aff'd on other grounds, 424 U.S. 614, 96 S. Ct. 1062, 47 L. Ed. 2d 278 (1976). The purpose of the extradition hearing is not to determine guilt or innocence, but rather, to determine that,

 
1. There exists a valid extradition treaty between the United States and the requesting state;
 
2. The relator is the person sought;
 
3. The offense charged is extraditable;
 
4. The offense charged satisfies the requirement of double criminality;
 
5. There is "probable cause" to believe the relator committed the offense charged;
 
6. The documents required are presented in accordance with United States law, subject to any specific treaty requirements, translated and duly authenticated by a United States consul; and
 
7. Other treaty requirements and statutory procedures are followed.

 M. Bassiouni, International Extradition: United States Law and Practice, Ch. IX § 5.1 (3d ed. 1996).

 The only issue in dispute in this case is whether the offense charged satisfies the requirement of "double criminality," more commonly referred to as "dual criminality." Transcript of Extradition Hearing, November 13, 1997 at p.1. *fn4" This doctrine holds that an offense is extraditable only if the acts charged are criminal by the laws of both countries. Collins v. Loisel, 259 U.S. 309, 311, 66 L. Ed. 956, 42 S. Ct. 469 (1922).

 B. Dual Criminality

 1. The Treaty Requirement

 The dual criminality requirement of the treaty between the United States and Mexico is set forth in Article 2, Sections 1 and 3 of the Treaty. Those sections provide,

 
1. Extradition shall take place, subject to this Treaty, for wilful acts which fall within any of the clauses of the Appendix and are punishable in accordance with the laws of both Contracting Parties by deprivation of liberty the maximum of which shall not be less than one year.
 
. . .
 
3. Extradition shall also be granted for wilful acts which, although not being included in the Appendix, are punishable, in accordance with the federal laws of both Contracting Parties, by a deprivation of liberty the maximum of which shall not be less than one year.

 Thus, in order for this Court to certify Valdez for extradition, the Court must find either that the offense with which Valdez is charged in Mexico is listed in the Appendix to the Treaty and is punishable by incarceration for a term of up to at least one year, or that the act alleged, although not listed in the Appendix, is punishable by both the United States and Mexico by incarceration for a term of up to at least one year.

 Documents filed with the Formal Request for Extradition state that the offense of Illegally Bringing into the Country a Firearm Reserved for the Exclusive Use of the Mexican Army, Navy and Air Force is "covered and punishable" under Article 84, Section 1 of the Mexican Federal Law on Firearms and Explosives; that the conduct attributed to Valdez is punishable by the laws of both the United States and Mexico by imprisonment for more than one year; and that the offense in question is also included in item 19 of the Appendix to the Treaty. However, these assertions are not controlling. "Determination of whether a crime is within the provisions of an extradition treaty is within the sole purview of the requested state." United States v. Van Cauwenberghe, 827 F.2d 424, 429 (9th Cir. 1987), cert. denied, 484 U.S. 1042, 98 L. Ed. 2d 859, 108 S. Ct. 773 (1988) (citing Johnson v. Browne, 205 U.S. 309, 316, 51 L. Ed. 816, 27 S. Ct. 539 (1907), and McGann v. U.S. Board of Parole, 488 F.2d 39, 40 (3d Cir. 1973) (per curiam), cert. denied, 416 U.S. 958 (1974)).

 2. The Requirements of the Dual Criminality Doctrine

 In Collins v. Loisel, 259 U.S. 309, 66 L. Ed. 956, 42 S. Ct. 469 (1922), the Supreme Court held that in order to satisfy the requirement of dual criminality,

 
The law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.

 Id. at 312.

 Citing Collins, some courts have held that the dual criminality doctrine requires only that the act alleged to have been committed constitute a crime in both countries. In Emami v. United States District Court, 834 F.2d 1444 (9th Cir. 1987), the Court of Appeals for the Ninth Circuit asserted, "It is well established that all the principle of dual criminality requires is that the particular acts alleged constitute a crime in both jurisdictions." Id. at 1450. Similarly, in Bozilov v. Seifert, 983 F.2d 140 (9th Cir. 1992), the Court stated,

 
"Dual criminality does not require that an offense in a foreign country have an identical counterpart under the laws of the United States." Dual criminality requires only that the acts alleged constitute a crime in both jurisdictions. Each state may name and penalize the crime differently.

 Id. at 142 (citations omitted) (quoting in part, Theron v. United States Marshal, 832 F.2d 492, 496 (9th Cir. 1987), cert. denied, 486 U.S. 1059, 100 L. Ed. 2d 930, 108 S. Ct. 2830 (1988), and citing Emami, 834 F.2d at 1450). In another case, the Court of Appeals for the Ninth Circuit stated, "Each element of the offense purportedly committed in a foreign country need not be identical to the elements of a similar offense in the United States. It is enough that the conduct involved is criminal in both countries." Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1404-05 (9th Cir. 1988), cert. denied, 490 U.S. 1106, 104 L. Ed. 2d 1020, 109 S. Ct. 3157 (1989) (quoting In re Russell, 789 F.2d 801, 803 (9th Cir. 1986)).

 However, in a number of cases, courts have implied that in order to satisfy the dual criminality requirement, more is required than that the act charged constitute a crime in both countries. Relying on Supreme Court precedent, the Court of Appeals for the Ninth Circuit has held that in order to satisfy the dual criminality requirement, the "essential character" of the acts criminalized by the laws of both countries must be the same, and that the laws of the two countries must be "substantially analogous." Oen Yin-Choy, 858 F.2d at 1404 (citing Theron, 832 F.2d 492 at 496 (quoting Wright v. Henkel, 190 U.S. 40, 58, 47 L. Ed. 948, 23 S. Ct. 781 (1903)).

 In his Motion re: Detainee's Response to Extradition Request, Valdez contends that bringing into Mexico a product "exclusively reserved for the military" fails the dual criminality test because there is no criminal statute in the United States that prohibits the "same conduct." Id. at p. 6. In Valdez's view, an essential element of the "conduct" charged is that the firearm involved is one reserved for exclusive use by the military. Reply to Government's Response re: Extradition, at ...


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