The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge
(1) ORDER GRANTING IN PART AND DENYING IN PART REQUEST FOR EXTRADITION; (2) ORDER DENYING MOTION TO STRIKE TESTIMONY OF RUBEN GONZALEZ AT EXTRADITION; AND (3) CERTIFICATION OF EXTRADITABILITY HEARING [Doc. No. 26]
This is a proceeding under 18 U.S.C. § 3184 pursuant to a request by the United Mexican States (hereafter "Mexico") through the United States Government (hereafter "the Government") for the extradition from the United States to Mexico of Aldo Omar Crotte Sainez (hereafter "Crotte" or "Respondent") under the provisions of the Extradition Treaty Between the United States of America and The United Mexican States, May 4, 1978 (hereafter "Treaty").
For the reasons set forth below, the Court GRANTS IN PART DENIES IN PART the request for extradition, and DENIES the motion to strike testimony of Ruben Gonzalez.
I. Background Procedural History
In late December 2006, Crotte was arrested by Immigration and Customs Enforcement officials at the San Ysidro Port of Entry while traveling from Mexico to San Francisco. Respondent's Resp. & Opp'n [Doc. No. 17] (hereafter "Resp't.'s Br.") at 8; Diplomatic Note No. 02187 dated Mar. 23, 2007 from Ambassador Arturo Sarukhan to Secretary of State Condoleezza Rice (hereafter "Diplomatic Note") at 1.*fn1 Crotte was therafter placed into removal proceedings before the Immigration Court in San Diego. Resp't.'s Br. at 8 & Ex. B at 282.*fn2
On January 24, 2007, the Government filed a Complaint for Provisional Arrest With a View Towards Extradition against Crotte on behalf of Mexico (Doc. No. 1), and the Court issued an arrest warrant for Crotte. The warrant was executed on March 12, 2007 and Crotte made his first appearance in this matter that same day. Doc. Nos. 3, 5. On March 14, 2007, the Government moved the Immigration Court to terminate the removal proceedings. Resp't.'s Br., Ex. B at 282. The removal proceedings were terminated on March 20, 2007. Id. at 283.
On March 23, 2007, Mexico requested the extradition of Crotte by submitting Diplomatic Note No. 02187 to the Secretary of State of the United States. Mexico seeks to extradite Crotte to answer charges of (1) Simple Intentional Homicide (hereafter "homicide") and (2) Battery/Bodily Injuries (hereafter "battery") pursuant to an arrest warrant issued by the Eleventh Judge of the Criminal Court of the First Judicial District in Puente Grande, state of Jalisco, on November 5, 1999. Diplomatic Note at 1; Documentary Evidence Accompanying Extradition Request (hereafter "Doc. Evid."), Ex. 14.
The Government filed a Supplemental Memorandum in Support of Mexico's Request for Extradition on May 1, 2007. Doc. No. 6. Crotte was denied bond on June 19, 2007. Doc. No. 14. On August 10, 2007, Crotte filed a Response and Opposition to the Government's Request for Extradition. Doc. No. 17. The Government's Reply was filed on August 21, 2007. Doc. No. 20. On September 11, 2007, the Court granted Crotte's request for a continuance of the extradition hearing, and continued the hearing to September 26, 2007. Doc. No. 22. On September 18, 2007, Crotte filed a Request for Extension of Time to File Court Ordered Brief and for the Government to Produce Text of Legal Provisions Under Article 10(2)(d). Doc. No. 23. In response, the Government filed an Amended Reply to Response and Opposition to Request to Certify Extradition. Doc. No. 24.
The Court held an extradition hearing on September 26, 2007. At the Court's request, Ruben Gonzalez answered certain questions posed by the Court at the conclusion of the hearing.*fn3 Following the hearing, on September 28, 2007, the Government filed a motion to strike the testimony of Mr. Gonzalez. Doc. No. 26. Crotte filed an opposition to the Government's motion to strike on October 9, 2007. Doc. No. 27.
The Request for Extradition
Mexico seeks to extradite Crotte to answer the following charges:
(1) Homicide of Daniel Sandoval Abundis ("Sandoval") on June 26, 1999, in violation of Article 213 of the Penal Code of the State of Jalisco, Mexico (hereafter "Jalisco Penal Code");
(2) Battery of Julio Cesar Sevillano Gonzalez ("Sevillano") on June 26, 1999, in violation of Article 206 of the Jalisco Penal Code.
The evidence submitted in support of the extradition request is comprised of:
(A) Diplomatic Note No. 02187 dated March 23, 2007 from Ambassador Arturo Sarukhan of the Embassy of Mexico to Condoleezza Rice, Secretary of State of the United States, certified and authenticated on April 20, 2007; and
(B) Seventeen items of documentary evidence, certified and authenticated on March 16, 2007 by David T. Donahue, Minister Counselor for Consular Affairs for the United States, including:
(1) Ministerial attestation by Carlos Romero Venegas, Public Prosecutor of the Office of the Attorney General for the State of Jalisco ("Public Prosecutor Romero") dated June 26, 1999.
(2) Statement by Jose Antonio Nava Valadez to Public Prosecutor Romero on June 26, 1999.
(3) Ministerial attestation by Public Prosecutor Romero dated June 27, 1999.
(4) Qualificative Medical-Legal Report prepared by Luz Elena Lopez Villaseñor of Green Cross Municipal Medical Services describing wounds suffered by Sevillano.
(5) Statement by Maria Luisa Cuevas Dueñaz(s) to Public Prosecutor Jose De Jesus Herrera Bocanegra ("Public Prosecutor Herrera") on July 14, 1999.
(6) Statement by Sevillano to Public Prosecutor Romero on June 27, 1999.
(7) Death record for Sandoval dated June 27, 1999.
(8) Autopsy report for Sandoval dated June 28, 1999.
(9) Photographs of Sandoval's body.
(10) Statement by Salvador Gonzalez Gonzalez to Public Prosecutor Herrera on July 14, 1999.
(11) Statement by Carlos Crotte Guevara to Public Prosecutor Herrera on July 14, 1999.
(12) Statement by Sevillano to Public Prosecutor Horacio Vega Pamanes on September 2, 1999.
(13) Request for issuance of arrest warrant by Public Prosecutor Herrera dated September 24, 1999, containing summary of evidence and Public Prosecutor's findings.
(14) Arrest warrant issued by the Eleventh Judge of the Criminal Court of the First Judicial District in Puente Grande, state of Jalisco, on November 5, 1999.
(15) Writ by the Court Clerk of the Eleventh Judge of the Criminal Court dated April 22, 2005 certifying the validity of the arrest warrant.
(16) Excerpts from Jalisco Penal Code.
(17) Statement by Cesar Benitez Castillo dated February 7, 2007 identifying person in accompanying photograph as Crotte.
Extradition from the United States is a diplomatic process that is initiated by a request from the nation seeking extradition directly to the Department of State. Prasoprat v. Benov, 421 F.3d 1009, 1010 (9th Cir. 2005). "After the request has been evaluated by the State Department to determine whether it is within the scope of the relevant extradition treaty, a United States Attorney . . . files a complaint in federal district court seeking an arrest warrant for the person sought to be extradited." Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir. 2003). "Extradition treaties are to be liberally construed so as to effect their purpose, that is, to surrender fugitives for trial for their alleged offenses." Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 14 (1936).
The authority of a magistrate judge serving as an extradition judicial officer is limited to determining an individual's eligibility to be extradited, which is done by ascertaining (1) whether the crime is an extraditable offense under the subject treaty and (2) whether probable cause exists to sustain the charge. Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006). If the Court determines that these 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 fugitive. 18 U.S.C. § 3186.
Determination of Whether the Offenses are Extraditable
In determining whether the subject crimes are extraditable offenses, the Court must find that an extradition treaty exists between the United States and Mexico, and that the crimes charged are covered by the treaty. Vo, 447 F.3d at 1237 (citing 18 U.S.C. § 3184). The Government has submitted a declaration from Gregory Wierzynski of the State Department in Washington, D.C., dated April 17, 2007, which verifies that the Extradition Treaty between the United States and Mexico, TIAS 9656, was signed on May 4, 1978 and is presently in full force and effect. Wierzynski Decl., ¶ 3. A copy of the Treaty is attached to the declaration. Crotte does not contest that the Treaty is in full force and effect. The Court thus finds that there is a valid extradition treaty in full force and effect between the United States and Mexico.
The Treaty sets forth the following with respect to "Extraditable Offenses":
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.
Treaty, art. 2(1). The Appendix to the Treaty lists the following two offenses:
1. Murder or manslaughter; abortion
2. Malicious wounding or injury.
Article 213 of the Jalisco Penal Code provides the following with respect to homicide offenses:
An imprisonment penalty from twelve to eighteen years shall be imposed upon whoever kills another person, but in case of an aggravated homicide the imprisonment penalty imposed shall be from twenty to thirty-five years.
Doc. Evid., Ex. 16 at 123.*fn4 Article 206 of the Jalisco Penal Code states the following with respect to bodily injury (battery) offenses:
A person commits the crime of injuries when he causes any harm to another's health. at 122. Article 207 of the Jalisco Penal Code provides:
Whoever is responsible for the crime of injuries that do not endanger life, shall be imposed: . . .
An imprisonment penalty from three months to two years, whenever the injuries take more than fifteen days to heal.*fn5 Therefore, both of the alleged offenses are specifically set forth as extraditable crimes in the Treaty Appendix and are punishable by a maximum imprisonment of not less than one year, as required by Article 2 of the Treaty.
Article 2(1) of the Treaty also contains a dual criminality requirement. Under the principle of dual criminality, "no offense is extraditable unless it is criminal in both jurisdictions." Caplan v. Vokes, 649 F.2d 1336, 1343 (9th Cir. 1981) (citing Collins v. Loisel, 259 U.S. 309, 312 (1922)). "It is well established that all the principle of dual criminality requires is that the particular acts alleged constitute a crime in both jurisdictions." Emami v. United States District Court, 834 F.2d 1444, 1450 (9th Cir. 1987). "The name by which the crime is described in the two countries need not be the same, nor need the scope of the liability for the crimes be either coextensive or the same in both countries." Id. (citations omitted). Instead, "dual criminality exists if the 'essential character' of the acts criminalized by the law of each country are the same and if the laws are 'substantially analogous.'" Theron v. United States Marshal, 832 F.2d 492, 496 (9th Cir. 1987), abrogated on other grounds by United States v. Wells, 519 U.S. 482 ...