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In the Matter of the Extradition of

June 13, 2011

IN THE MATTER OF THE EXTRADITION OF JOSE LUIS MUNOZ SANTOS, A FUGITIVE FROM THE GOVERNMENT OF THE UNITED MEXICAN STATES.


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM AND ORDER CERTIFYING EXTRADITABILITY

Introduction

The United Mexican States ("Mexico") has requested the extradition of Jose Luis Munoz Santos, aka "El Pepe Munoz," aka "El Patillas," aka "Jose Luis Hernandez Santos" ("Munoz"*fn1 ), pursuant to the Extradition Treaty between the United States of America ("United States" or "government") and Mexico, signed at Mexico City on May 4, 1978 ("Extradition Treaty"), and entered into force January 25, 1980. See T.I.A.S. No. 9656, 31 U.S.T. 5059, 1980 WL 309106 (Jan. 25, 1980). The court has considered the extensive record compiled in this case and the legal arguments made by counsel during the April 19, 2011 extradition hearing.

Following the filing of a complaint ("Complaint") and the issuance of a provisional arrest warrant on May 12, 2006, Munoz was arrested in the United States on May 17, 2006.*fn2 The government subsequently filed Mexico's formal request for extradition, with supporting documentation. [Filing of Redacted Formal Extradition Papers and Request for Extradition filed August 15, 2006, Docket No. 10 (cited as "Formal Papers" in text, "FP" in citations)]. The government originally requested Munoz's extradition to Mexico to face charges of kidnapping and homicide arising from his alleged involvement in the kidnapping of Dignora Hermosillo Garcia ("Hermosillo") and her two minor daughters, K.C.H. and C.J.C.H., on or about August 18, 2005, and the homicide of C.J.C.H. [FP at 0001-0002; Government's Extradition Memorandum filed May 14, 2010, Docket No. 124 ("Extradition Mem.") at 2; Notice of Filing of Diplomatic Note No. 05059 and Declaration of Haydee Chavez Sanchez filed Nov. 3, 2009, Docket No. 112 (redacted copy; original under seal)].

Subsequent legal proceedings in Mexico narrowed the charge against Munoz to kidnapping only. On September 4, 2007, a Mexican criminal court issued a superseding warrant for Munoz's arrest on the charge of kidnapping Hermosillo and her two daughters (the "Warrant"). At Mexico's behest, the government filed supplemental papers seeking the extradition of Munoz to Mexico to face the kidnapping charge. [See Extradition Mem. 3; Government's Filing of Supplemental Formal Extradition Papers and Affidavit of Haydee Chavez Sanchez filed May 14, 2010, Docket No. 126 (redacted, English-only copy; original under seal) ("2010 Supp. FP") at 4-9; Notice of Filing of Diplomatic Notes Nos. 05454 and 09613, filed April 13, 2010, Docket No. 123, at Exhibit ("Ex.") D; Government's Filing of Supplemental Formal Extradition Papers, filed March 12, 2009, Docket No. 79 ("2009 Supp. FP") (redacted copy; original under seal) at 8-34].

Munoz filed an opposition to the extradition request with supporting exhibits. [See Opposition ("Opp.") and Exhibits filed June 3, 2010, Docket Nos. 141-145 (under seal)]. The government filed a reply memorandum on June 8, 2010 ("Gov. Reply"), and Munoz filed a sur-reply under seal on June 9, 2010.

On February 16, 2011, an order was filed denying Munoz's request to call witnesses and present oral testimony during the extradition hearing.

Discussion

Standard for Certification of Extraditability

Extradition from the United States is governed by 18 U.S.C. section 3184, which confers jurisdiction on "any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States" to conduct an extradition hearing under the relevant extradition treaty between the United States and the requesting nation, and to issue a certification of extraditability to the Secretary of State.*fn3 18 U.S.C. § 3184; see Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir. 2000).*fn4

To obtain a certification of extraditability on behalf of a requesting state, the United States has the burden of demonstrating each of the following elements: (1) the court possesses subject matter jurisdiction to conduct extradition proceedings; (2) the court possesses personal jurisdiction over the person named in the extradition request; (3) a valid extradition treaty exists between the requesting state and the United States; (4) the extradition treaty between the requesting state and the United States is, and at all relevant times has been, in full force and effect; (5) the person named in the extradition request is charged with having committed a criminal offense within the jurisdiction of the requesting state; (6) the charged offense is extraditable under the relevant extradition treaty (that is, the offense charged falls within the terms of the relevant extradition treaty); (7) the person named in the extradition request is the person arrested and brought before the court; and (8) there is competent evidence establishing probable cause to believe that the person named in the extradition request committed the charged offense. See 18 U.S.C. §§ 3184, 3190; Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir. 2008); Prasoprat v. Benov, 421 F.3d 1009, 1013 (9th Cir. 2005), cert. denied, 546 U.S. 1009 (2006); Cornejo-Barreto, 218 F.3d at 1009-1010; Quinn v. Robinson, 783 F.2d 776, 782-783 (9th Cir.), cert. denied, 479 U.S. 882 (1986). "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).

During the extradition hearing, Munoz's counsel stipulated that all elements except the element of probable cause have been satisfied. [See Transcript of April 19, 2011 Extradition Hearing ("Extradition Hearing Transcript") at 5-6]. Accordingly, the only disputed issue is whether the record contains competent evidence establishing probable cause to believe that Munoz committed the charged offense of kidnapping.

Authentication requirement

The admissibility of evidence in extradition proceedings is governed by "the general extradition law of the United States and the provisions of the" Extradition Treaty. Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1450 (9th Cir. 1987); accord, Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1406 (9th Cir. 1988). "The authentication requirements for documentary evidence are contained in 18 U.S.C. § 3190, which specifies that 'the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that submitted documents are authenticated in the manner required.'" Barapind v. Enomoto, 400 F.3d 744, 748 (9th Cir. 2005) (en banc) (per curiam); see Bingham v. Bradley, 241 U.S. 511, 517 (1916) (holding that documentary evidence that was "properly authenticated in accordance with" the predecessor provision to section 3190 was "competent" and "sufficient" to establish probable cause).

The Extradition Treaty states that the documents "accompany[ing] the request for extradition, shall be received in evidence when: . . . b) In the case of a request emanating from the United Mexican States, they are certified by the principle [sic] diplomatic or consular officer of the United States in Mexico." Extradition Treaty, art. 10, § 6. The Extradition Treaty imposes no supplementary authentication requirements or other requirements for the admissibility of documentary evidence.

The Federal Rules of Evidence do not apply in extradition hearings. Then v. Melendez, 92 F.3d 851, 855 (9th Cir. 1996); Oen Yin-Choy, 858 F.2d at 1406. Thus, for example, hearsay evidence is admissible, as are unsigned translations of a witness's statements and unsworn statements of absent witnesses, provided the evidence is properly authenticated and-as is true in this case-the governing extradition treaty does not require that witness statements be executed under oath. See Collins v. Loisel, 259 U.S. 309, 317 (1922); Barapind, 400 F.3d at 748; Then, 92 F.3d at 855; In re Requested Extradition of Smyth, 61 F.3d 711, 720-721 (9th Cir.), as amended by 73 F.3d 887 (9th Cir.1995), cert. denied, 518 U.S. 1022 (1996); Emami, 834 F.2d at 1451-1452; Quinn, 783 F.2d at 815; Zanazanian v. United States, 729 F.2d 624, 626-628 (9th Cir. 1984).

Munoz does not challenge the authentication of any of the government's evidence. That evidence was contained in various filings accompanied by certificates with ribbons and seals signed by the then-current principal consular officer, the "Minister Counselor of Consular Affairs" of the United States at Mexico City, Mexico, attesting that the annexed documents were "properly and legally authenticated so as to entitle them to be received in evidence for similar purposes by the tribunals of the United Mexican States." [See FP 25, 78; 2010 Supp. FP 4; 2009 Supp. FP 5]. Accordingly, the government's evidence is admissible for purposes of establishing probable cause.

Munoz, however, contends that the government's evidence substantively fails to establish probable cause. Munoz further argues that even if the government's probable cause showing is deemed sufficient, additional evidence offered by Munoz is admissible and "obliterates" the government's evidence of probable cause.

Probable cause standard

The Extradition Treaty states that an "extradition shall be granted only if the evidence be found sufficient, according to the laws of the requested Party, either to justify the committal for trial of the person sought if the offense of which he has been accused had been committed in that place or to prove that he is the person convicted by the courts of the requesting Party." Extradition Treaty, art. 3. This provision "requires extradition under the [Extradition] Treaty to be based on competent evidence that would be sufficient to establish probable cause to hold a defendant for trial under United States law." Wang v. Masaitis, 316 F.Supp.2d 891, 898 (C.D. Cal. 2004) (construing nearly identical treaty language) (quoting Emami, 834 F.2d at 1447); see Barapind, 400 F.3d at 747 ("Certification of extradition is lawful only when the requesting nation has demonstrated probable cause to believe the accused person is guilty of committing the charged crimes.") (citing Quinn, 783 F.2d at 783; Cornejo-Barreto, 218 F.3d at 1009); see also 18 U.S.C. § 3184; Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir. 1999) (stating that the record must "contain[] competent evidence to support the conclusion that there was probable cause to believe the petitioner guilty") (quoting Zanazanian, 729 F.2d at 626), superseded by statute on other grounds as stated in Cornejo-Barreto, 218 F.3d at 1009 n.5.

Under federal law, probable cause "exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." Rodis v. City, County of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009) (quoting United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). "The probable cause standard is incapable of precise definition or quantification into percentages" and is a "fluid concept" because it "depends on the totality of the circumstances" and "turn[s] on the assessment of probabilities in particular factual contexts . . . ." Rodis, 558 F.3d at 969 (citations omitted).

"The function of the committing magistrate is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction." Collins, 259 U.S. at 316. "The magistrate does not weigh conflicting evidence and make factual determinations but, rather, determines only whether there is competent evidence to support the belief that the accused has committed the charged offense." Quinn, 783 F.2d at 815; accord, Barapind, 400 F.3d at 750, 752. Thus, "[a]n extradition proceeding is not a trial . . . ." Emami, 834 F.2d at 1452 (citing Charlton v. Kelly, 229 U.S. 447, 461 (1913)); see Quinn, 783 F.2d at 817 n.41 (noting the "well-established rule that extradition proceedings are not to be converted into a dress rehearsal for trial") (quoting Jhirad v. Farrandina, 526 F.2d 478, 484 (2d Cir.), cert. denied, 429 U.S. 833 (1976)); see also Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003) ("American judicial officers conduct a circumscribed inquiry in extradition cases."). "If the evidence is sufficient to sustain the charge, the inquiring magistrate judge is required to certify the individual as extraditable to the Secretary of State and to issue a warrant." Blaxland, 323 F.3d at 1208 (citing Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997)).

Although the federal probable cause standard applies, the probable cause finding need not be "predicated upon evidence that would be admissible at a preliminary hearing or before a grand jury in the United States." Zanazanian, 729 F.2d at 626 (citing Collins, 259 U.S. at 317). The magistrate judge's function is "to determine whether there is 'any' evidence sufficient to establish reasonable or probable cause." United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726, 730-731 (9th Cir. 1975); see Cleugh v. Strakosch, 109 F.2d 330, 333 (9th Cir. 1940) (stating, in an extradition case, that "the sole question was, and is, whether there was any evidence warranting the finding that there was reasonable or probable cause to believe appellee guilty-not whether such evidence was sufficient, but whether there was any such evidence").

Government's evidence in support of probable cause

To establish probable cause, the government relies exclusively on the statements of several witnesses, translations of which are attached to the Formal Papers or the Warrant:

(1) Statement of Hermosillo [see Extradition Mem. 4-6 & Ex. 2 at 43; FP 250-253, 264, 269-270, 324-328];

(2) Statement of Benigno Andrade Hernandez ("Andrade") [see Extradition Mem. 6 & Ex. 2 at 50-52, 57-58; FP 202-204, 321-323];

(3) Statement of Jesus Servando Hurtado Osuna ("Hurtado") [see Extradition Mem. 6-7 & Ex. 2 at 59, 65-66; FP 214-225];

(4) Statement of Roberto Castellanos Meza ("Castellanos") [see Extradition Mem. 7-8 & Ex. 2 at 47-50; FP 320-321]; and

(5) Statement of Fausto Librado Rosas Alfaro ("Rosas") [see Extradition Mem.8-11; FP 354-357].

These statements are summarized below in chronological order.

Statement of Castellanos On August 21, 2005, Castellanos voluntarily gave a statement to the Public Prosecutor's Office for the purpose of filing a complaint. [See Extradition Mem. 7-8 & Ex. 2 at 47-50; FP 320-321]. He said that he was a storekeeper and a partner in a shrimp farm. He was the husband of Hermosillo and the father of C.J.C.H. and K.C.H. [FP 320]. On August 18, 2005, at about 3 p.m., Castellanos told Hermosillo that he would drop their daughters off at her mother's house, where she was to pick them up after an appointment. At about 9 p.m., Castellanos received a call on his cell phone from his wife's cell phone number, but he got cut off when he tried to answer. When he tried calling his wife back, she did not answer, and he thought she might be mad at him. [FP 320]. At about 10:30 p.m., Castellanos's brother, Juan Carlos Casteneda Meza, phoned him to let him know that he had passed Castellanos's house, and that the garage door was open and there was no vehicle in the garage. [FP 321]. At that point Castellanos began to worry. [FP 321]. He called his father-in-law's house to say he did not know where his wife and daughters were, and he tried unsuccessfully to locate them.

At around 6:30 a.m. the following day, August 19, 2005, Castellanos received a call from Hermosillo. She told him to come pick her up in the town of Jolotemba. [FP 321].

Statement of Hermosillo

On August 29, 2005,*fn5 eleven days after her kidnapping, Hermosillo voluntarily appeared before a Deputy District Attorney in Tepic, in the state of Nayarit, Mexico and gave a sworn statement.*fn6

Hermosillo said that on August 18, 2005, she arrived home in her white Jeep Grand Cherokee ("Jeep") with her two daughters, opened her garage door, and drove her Jeep in. [See Extradition Mem. 4-6 & Ex. 2 at 43; FP 156-160, 250-253, 264, 269-270, 324-328]. She noticed that the door leading into her home was open, which was unusual. [FP 250-251]. Hermosillo tried to make a cell phone call to her husband, who did not answer. She and her two daughters entered their home, where they were confronted by a man wearing a ski mask and carrying a pistol. [FP 251]. The man threatened them, bound Hermosillo's hands, and put Hermosillo and her daughters in the Jeep. [FP 251]. The man could not figure out how to open the garage door, and he told Hermosillo to "open the door and don't make this any harder." [FP 251]. Hermosillo told him about the remote on the visor and told him to press the button to open the garage door. [FP 251]. After the man opened the garage door, he drove out at high speed. [FP 251]. He took the "free road" and drove toward El Aguacate. While they were driving, the man nervously pulled on his ski mask, and Hermosillo noticed that he "[had] a large mark on his nose . . . [like] a mole or a scar . . . ." [FP 251].

As he drove, the man asked Hermosillo about her husband and the routes he took to work. [FP 251]. Hermosillo replied that her husband was a businessman who owned a shrimp farm and that she did not know what routes he took because she stayed home while he went to work. [FP 251]. At some point, the man stopped the car and taped Hermosillo's eyes, mouth, hands, and feet with duct tape. [FP 251]. He told her that he was taping up her daughters "so that they wouldn't scream." [FP 251].

The man later stopped the Jeep, took K.C.H. out of the car, and abandoned her. [FP 252]. About an hour later, he stopped the car again, took out C.J.C.H., and abandoned her. [FP 252]. He told Hermosillo that he did not intend to hurt them, and that he had left her daughters "in a place where the fishermen were going to find them . . . ." [FP 252]. He asked Hermosillo for the PIN number for her bank card, which she gave to him. He also asked whether her cell phone had her husband's phone number on it, and she said that it did. The man eventually left Hermosillo by a tree near the side of the road, with her feet, hands, mouth, eyes, and ears taped. [FP 252]. Hermosillo used a piece of barbed wire to remove some of the tape, walked to the highway, and managed to get a ride into the town of Jolotemba. [FP 252]. Once there, she called her husband and asked him to pick her up. [FP 252].

On November 7, 2005, Hermosillo was "summonsed by telephone" to the office of a Deputy District Attorney, "sworn under the terms of the law to tell the truth," and shown two black and white photographs of Rosas. Hermosillo "plainly identifie[d]" the man in the photographs "without any doubt" as her kidnapper. [FP 264, 269-270].

Statement of Andrade

On January 12, 2006, Andrade voluntarily appeared before a Deputy District Attorney in Tepic and gave a sworn statement.*fn7 [See Extradition Mem. 6 & Ex. 2 ...

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