The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
This matter has come before this Court pursuant to Title 18 United States Code, Section 3181, et. seq., for a hearing at the request of the Republic of the Philippines for the extradition of Girlie J. Lingad. This Court held an extradition hearing on November 6, 2007 and January 30, 2007.
After having considered the evidence received at the hearing along with the arguments of counsel and the papers submitted prior to the hearing, this Court finds the person in custody before the Court is not extraditable under the extradition treaty between the United States of America and the Republic of the Philippines ("Treaty"). This Court also makes the following findings of fact and conclusions of law.
I. BACKGROUND OF THE CASE
On July 7, 2006, the United States Attorney's Office for the Southern District of California, acting on behalf of the Republic of the Philippines, presented a complaint for extradition to this Court. The complaint requested that the Court issue a warrant for the arrest of Lingad with a view toward extradition. The United States Attorney's Office presented the complaint against Lingad pursuant to the extradition treaty between the Philippines and the United States.
The complaint charged Lingad with the following crimes:
(a) Criminal Case No. 415-2004 charges one (1) count of Qualified Theft under Article 310 in relation to Article 308 through Falsification of Commercial Documents by a Private Individual under Article 172(1), in relation to Article 171(4), of the Revised Penal Code of the Republic of the Philippines. According to the complaint, on February 20, 2004, a United Coconut Planters Bank ("UCPB") customer tendered to Lingad an amount of money to be deposited into her passbook savings account. Lingad took the customer's money, but she made no entry into the bank's computer system documenting this transaction nor did she deposit the money into the vault as required by bank procedures. Instead, Lingad made a typewritten notation in the depositor's passbook, and pocketed the depositor's money for her use and benefit without the knowledge of either the depositor or the bank.
(b) Criminal Cases Nos. 542-2004 through 566-2004 charge 25 counts of Qualified Theft, in violation of Article 310, in relation to Article 308 of the Revised Penal Code of the Republic of the Philippines. According to the complaint, Lingad committed these 25 offenses between July 2002 and January 2004. Lingad withdrew or pre-terminated numerous deposits and/or placements of money with UCPB without the knowledge or consent of the depositor/investor concerned or UCPB. Lingad then pocketed the "withdrawals" for her own use and benefit. (c) Criminal Case No. 487-04 charges one (1) count of Qualified Theft under Article 310 in relation to Article 308 through Falsification of Commercial Documents by a Private Individual under Article 172(1), in relation to Article 171(4), of the Revised Penal Code of the Philippines. According to the complaint, on October 30, 2003, Lingad fraudulently issued a Manager's Check that withdrew from an account that had no money at the time Lingad prepared the check.
On July 7, 2006, the Honorable Jan M. Adler issued a warrant for the arrest of Lingad pursuant to the complaint filed by the United States Attorney's Office on behalf of the Republic of the Philippines. Lingad was arrested on July 7, 2006, and made her initial appearance before this Court on July 10, 2006.
On November 6, 2006, this Court held an extradition hearing. At the hearing, the Court requested that the government of the Philippines, as represented by the United States Attorneys' Office ("Government"), clarify certain pages of the extradition packet. The Government was unable to provide the Court with any clarification at the hearing. The Government represented that further correspondence with the Philippine government was necessary in order to address the Court's concerns. The Court permitted the Government to provide supplemental submissions addressing these matters.
Counsel for Lingad requested a continuance to determine whether the Philippine government will be dropping some or all of the charges against Lingad based on a motion for reconsideration filed by Lingad's attorneys in the Philippines. The Government objected to continuing the hearing on this basis. The Court denied the request to continue the hearing. When the Court reached the issue of "identity," the Government requested a continuance on this issue so that additional evidence may be gathered and presented at a later time. Counsel for Lingad objected to this request. The Court granted the Government's request and continued the hearing to January 11, 2007.
On January 8, 2007, the Court held a conference. Counsel for the Government represented he recently received the documents necessary for the supplemental submissions and therefore requested a continuance of the hearing set for January 11, 2007. The Court continued the hearing and set it for January 30, 2007.
On January 30, 2007, the Court held the extradition hearing. On the issue of identity, the Government presented a color photograph of the same black-and-white photograph included in the extradition packet. No other evidence pertaining to identity was presented. Counsel for the Government requested that the hearing be continued again so that he can obtain a witness and/or more evidence to prove identity. Counsel for Lingad objected to continuing the hearing any further. The Court denied the Government's request to continue. The extradition hearing concluded and the matter was submitted on January 30, 2007.
II. GENERAL PRINCIPLES REGARDING EXTRADITION HEARINGS
The sole purpose of an extradition hearing, held pursuant to 18 U.S.C. § 3184 (and the applicable Extradition Treaty), is to determine whether or not the individual who has been arrested in the United States pursuant to a complaint filed on behalf of a foreign government is subject to surrender to the requesting country. The substantive right of a foreign country to request the return of a fugitive and the duty of the United States to deliver the fugitive depends entirely on the existence of a treaty between the requesting nation and the United States. 18 U.S.C. § 3181, Factor v. Laubenheimer, 290 U.S. 276 (1933). To invoke its right to extradite a fugitive, the requesting nation must submit its request to a state or federal court. 18 U.S.C. § 3184. The court determines whether the fugitive is subject to extradition, and, if so, must order the fugitive's commitment and certify the supporting record to the Secretary of State. Id. The Secretary of State bears the responsibility for deciding whether surrender will ultimately occur. 18 U.S.C. § 3186; Escobedo v. United States, 623 F.2d 1098, 1105 n.20 (5th Cir.), cert. denied, 449 U.S. 1036 (1980). The fugitive cannot obtain direct appellate review of either the extraditing court's decision, Collins v. Miller, 252 U.S. 364, 369 (1920); Gusikoff v. United States, 620 F.2d 459, 461 (5th Cir. 1980), or the Secretary of State's exercise of discretion. Escobedo, 623 F.2d at 1105. The fugitive may obtain habeas corpus relief on the grounds of lack of probable cause, failure to prove identity, or failure to charge an offense within the meaning of the treaty. Gusikoff, 620 F.2d at 461.
The Government must prove several elements before Lingad may be found extraditable by this Court. These elements roughly fall into six categories: (1) that the Court has jurisdiction to decide the question of extradition; (2) that a treaty of extradition exists between the United States and the Republic of Philippines and that the crimes with which Lingad has been charged are covered by that treaty; (3) that Lingad has been charged with such offenses in the requesting country; (4) that the offenses with which Lingad is charged in the Republic of Philippines are also offenses in the United States (dual criminality); (5) that there is some evidence warranting the finding that there is reasonable ground to believe Lingad is guilty (probable cause); and (6) that Lingad is the same individual charged with the offenses by the requesting party (identity). Caplan v. Vokes, 649 F.2d 1336 (9th Cir. 1981); Fernandez v. Phillips, 268 U.S. 311 (1925).
In short, the paramount principle of every extradition proceeding is to determine whether probable cause exists to believe the person whose surrender is sought has committed the crime of which her extradition is requested. Collins v. Loisel, 259 U.S. 309, 315 (1922); Gusikoff, 620 F.2d at 462.
III. SUMMARY OF FACTS UNDERLYING ALLEGED OFFENSES*fn1
The Republic of the Philippines seeks to extradite Lingad on the following charges: (i) one count of Qualified Theft under Article 310 in relation to Article 308 through Falsification of Commercial Documents by a Private Individual under Article 172(1), in relation to Article 171(4), of the Revised Penal Code of the Republic of the Philippines; (ii) 25 counts of Qualified Theft under Article 310 in relation to Article 308 of the Revised Penal Code of the Republic of the Philippines; and (iii) one count of Qualified Theft through Falsification of Commercial Documents by a Private Individual under Article 172(2) in relation to Article 171 of the Revised Penal Code of the Republic of the Philippines. All of the charges pertain to the alleged theft of money by Lingad from the UCPB where she was employed during the period in which the thefts occurred.
1. One Count of Qualified
Theft through Falsification of Commercial Documents by a Private Individual On February 20, 2004, Raquel Elvidge, a depositor of UCPB, tendered to Lingad, the sum of 250,000 pesos for the purpose of opening a Premium Savings Deposit ("PSD") account. Lingad received the said amount pursuant to her duties as Marketing Associate of UCPB.
The standard operating procedures of UCPB required Lingad to place the money in the bank vault or such other depository for cash as may be designated by UCPB, encode the deposit in the bank's computerized PSD system, and print the transaction on the passbook of the depositor directly from the computer printer. However, Lingad did not follow these procedures. Lingad did not encode the deposit in the PSD system and had the transaction typewritten on the depositor's passbook. Thus, per bank records, no deposit was made by the depositor on that date, while the depositor was made to believe, by the entries typewritten by Lingad on her passbook, that her deposit was duly accepted and recorded by UCPB. Lingad then took the deposit in question and pocketed the same for her personal use and benefit without the knowledge or consent of the depositor or UCPB.
2. 25 Counts of Qualified Theft
On various dates beginning in July 2002 up to January 2004, Lingad withdrew or pre- terminated numerous deposits and/or placements with UCPB without the knowledge or consent of the depositor/investor concerned or UCPB.
On July 3, 2002, Lingad pocketed for her own benefit the sum of 10,240,000.00 pesos from the Money Market ("MM") placement of William Chieng, without the knowledge, authority or consent of the depositor/investor or UCPB. To avoid detection by UCPB, she made it appear that the depositor/investor pre-terminated the amounts of 9,503,325.00 pesos and 736,675.00 pesos by encoding the required entries in UCPB's computer system. In order to make the depositer/investor believe his placement and interest earned were intact, Lingad issued official receipts on August 2, 2002, October, 1, 2002, December 2, 2002, January 31, 2003, and March 26, 2003. These receipts showed the depositor/investor that his MM placement was simply rolled-over or re-invested upon maturity.
When Chieng withdrew his MM placement on April 23, 2003, Lingad prepared Manager's Check ("MC") No. 5305 in the amount of 10,405,873.24 pesos. MC No. 5305 should have been printed from the computer printer upon completion of the encoding of the transaction in UCPB's computer system, but because the account in question already had a zero balance, Lingad used a typewriter to print the entries on MC No. 5305. When MC No. 5305 was paid, UCPB suffered damage in the amount of 10,405,873.24 pesos. Lingad funded MC No. 5305 with withdrawals of 6,405,873.24 pesos and 4,000,000.00 pesos from two different PSD accounts, both in the name of another UCPB depositor. Both withdrawals were encoded by Lingad in UCPB's computer system, without the required documentation and without the knowledge or consent of the depositor or UCPB itself, to make it appear in UCPB's records that the depositor effected the withdrawals.
On November 4, 2002, Lingad pocketed for her own benefit the sum of 12,434,936.30 pesos from the MM placement of Chieng, without the knowledge, authority or consent of the depositor/investor or UCPB itself. To avoid detection by UCPB, she encoded entries in UCPB's computer system to make it appear that Chieng (1) opened Savings Account ("SA") No. 218- 115824-7; and (2) preterminated his MM placement and deposited the proceeds thereof to SA No. 218-115824-7. Lingad took full and absolute control of this savings account.
By being in control of the fictitious SA, Lingad was able to withdraw and pocket for her own use and benefit from the account on various dates. She was able to conduct these transactions by encoding entries in UCPB's computer system, without the knowledge or authority of the depositor/investor or UCPB, to make it appear that the depositor/investor withdrew from the fictious account. In order to make the depositor/investor believe that his placement and interest were intact, Lingad issued official receipts all tending to show that his MM placement was simply rolled-over or re-invested upon maturity.
On April 9, 2003, in anticipation of the withdrawal of the MM placement by Chieng, Lingad encoded entries in UCPB's computer system without the required documentation, authority or consent of the depositor or bank. Lingad took these actions to (1) to make it appear that the amount of 12,438,350.00 pesos was withdrawn from PSD Account No. 1860-A by the owner of the account; and (2) to balance the bank's records, make it appear that Chieng opened PSD Account No. 1835-D and deposited the same amount as initial deposit. In actuality, Lingad opened PSD Account No. 1835-D without the knowledge or consent of Chieng, who did not open the account with UCPB. This account constituted another fictitious account set up by Lingad.
On April 10, 2003, when Chieng withdrew or preterminated his MM placement, Lingad prepared MC No. 5288 in the amount of 12,438,781.89 pesos representing the principal and interest on Chieng's investment. Lingad funded the payment for the MC with the deposit under fictitious PSD Account No. 1835-D. In turn, the funding for PSD Account No. 1835-D came from PSD Account No. 1860-A in the name of another depositor.
On various dates in August 2003, Lingad withdrew and pocketed various sums from Chieng's PSD Account No. 1835-E without his knowledge or consent. When the account matured on October 30, 2003, and Chieng withdrew his deposit, Lingad prepared and processed an application for an MC in the amount of 11,254,972.00 pesos. She then caused the issuance of MC No. 5542 in the same amount to Chieng for the principal and interest. Finally, Lingad withdrew and pocketed various sums from Chieng's PSD Account No. 2268- E on various dates in December 2003. When the account matured on April 16, 2004, and Chieng withdrew his deposit, Lingad processed and caused the issuance of MC No. 5763 in the amount of 5,134,947.62 pesos. However, the balance of the deposit under the account amounted to 391,528.67 pesos since Lingad had withdrawn 4,743,418.95 pesos for her own benefit.
3. One Count of Qualified Theft
Through Falsification of Commercial Documents by a Private Individual In connection with the crime of Qualified Theft, Lingad caused the issuance of MC No. 5542, a commercial document, in the amount of 11,254,972.00 against an account with zero balance.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
After consideration of the documentary evidence and oral argument, this Court finds that the government of the Philippines, as represented by the United States Department of Justice, has established that:
1. The documents submitted in support of the Philippines' extradition request are in proper form and properly authenticated. Section 5(a) of Article 10 of the Extradition Treaty and 18 U.S.C. § 3190 require that the documents submitted by the Philippines be received and admitted into evidence if the principal consular officer of the United States has certified the authentication of the documents. The documents were certified on January 23, 2006, by David Buchholz, attorney advisor in the office of legal counsel, U.S. Department of State, Washington D.C. and Richard D. Haynes, principal consular officer for the United States in the Philippines, in accordance with 18 U.S.C. § 3190. Thus, the authenticated documents were properly received into evidence.
2. This Court has jurisdiction to determine the question of extradition. 18 U.S.C. § 3184. This Court also has jurisdiction over the individual in custody before this Court, who is alleged to be Lingad, and was found in the Southern District of California. The Court's authority to conduct this extradition hearing is not challenged.
3. There is a valid extradition treaty in force and effect between the United States and the Republic of the Philippines. The Treaty was signed on November 13, 1994, and went into effect on November 22, 1996. A copy is attached to the extradition packet. A U.S. Consular Officer, Richard D. Haynes, Counsel General of the U.S.A. in the Philippines, also certified the copy as the treaty. Additionally, the fact that there is a valid treaty in force and effect between the United States and the Philippines is not disputed.
4. The crimes charged against Lingad are covered by the Treaty. Article 2(1) of the Treaty defines extradictable offense as one "punishable under the laws of both Contracting Parties by deprivation of liberty for a period of more than one year, or more severe penalty." The Treaty does not contain an annex of covered crimes but incorporates dual criminality as the standard. The Philippine crimes charged are: (i) one count of Qualified Theft under Article 310 in relation to Article 308 through Falsification of Commercial Documents by a Private Individual under Article 172(1), in relation to Article 171(4); (ii) 25 counts of Qualified Theft under Article 310 in relation to Article 308; and (iii) one count of Qualified Theft through Falsification of Commercial Documents by a Private Individual under Article 172(2) in relation to Article 171. The elements of these offenses are set forth in the extradition packet.
The comparable crimes in the United States are set forth at 18 U.S.C. § 1005, which sets forth several crimes associated with Bank Entries, Reports, and Transactions, and 18 U.S.C. § 656, Theft, Embezzlement, or Misapplication by Bank Officer or Employee. All of these crimes are punishable by more than one year in custody and therefore satisfy the dual criminality provision of Article 2 of the Treaty. Further, there is no dispute that the crimes charged are covered by the Treaty.
5. There are criminal charges pending against Lingad in the Philippines. There is no dispute that there are charges pending against Lingad in the Philippines for the offenses for which extradition is sought. In the extradition packet submitted by the Republic of the Philippines, there are 27 Informations that charge Lingad with the offenses outlined above. There are also arrest warrants contained in the packet. Based on the Informations and arrest warrants, Lingad is wanted in three ...