Opinion

In Re the Extradition of Solis

402 F. Supp. 2d 1128
2005 U.S. Dist. LEXIS 34270
2005 WL 3274389

Court: District Court, C.D. California
Filed: Apr 12, 2005
Status: Published
Author: Lum
On the bench: Lum
Cited by: 3 cases
Authority: More cited than 46.3%

concluding that an “attack on the means by which the Mexican evidence was obtained” was a “prohibited contradiction in the evidence” because such an attack “challenges the veracity and validity of [the government witness’s] statements,” and excluding evidence that a witness who made an inculpatory statement later said that he did not know what he signed, was forced to sign the statement, and was threatened with death if he came to the United States to testify on the accused’s behalf

How later courts described this case

concluding that an “attack on the means by which the Mexican evidence was obtained” was a “prohibited contradiction in the evidence” because such an attack “challenges the veracity and validity of [the government witness’s] statements,” and excluding evidence that a witness who made an inculpatory statement later said that he did not know what he signed, was forced to sign the statement, and was threatened with death if he came to the United States to testify on the accused’s behalf
holding that respondent could not challenge the veracity or validity of a witness’s statement because “a fugitive in international extradition proceedings is not permitted to introduce evidence that contradicts the evidence submitted by the requesting country”
“[A] fugitive in international extradition proceedings is not permitted to introduce evidence that contradicts the evidence submitted by the requesting country.”

Written by the judges who cited it.

The opinion

ORDER CERTIFYING EXTRADITABILITY

LUM, United States Magistrate Judge.

Extradition proceedings having been brought in relation to the' fugitive, Jorge Salazar Solis aka “El Gordo” (“Salazar”), by Complainant United States of America, pursuant to 18 U.S.C. § 3184 and the Extradition Treaty in force between the United States and Mexico (“the Extradition Treaty”), and the undersigned judicial officer having considered the arguments presented by the parties in their papers and at the extradition hearing held January 28, 2005, during which no testimony was offered,

IT IS HEREBY FOUND AND HELD as follows:

(1) The undersigned judicial officer has jurisdiction to conduct extradition proceedings.

See

18 U.S.C. § 3184 ; Local Rule 72-1;

Extradition of Mainero,

990 F.Supp. 1208, 1216 (S.D.Cal.1997).

(2) The undersigned judicial officer has jurisdiction over Salazar because Salazar is presently in .custody in this district.

See

18 U.S.C. § 3184 ;

Extradition of Mainero,

990 F.Supp. at 1216 .

Jurisdiction is not defeated by the claim of Salazar that his arrest was illegal because it occurred before the issuance of an arrest warrant in the United States or Mexico. “The ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.”

INS v. Lopez-Mendoza,

468 U.S. 1032, 1039 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984);

Extradition ofAtta,

706 F.Supp. 1032, 1037 (E.D.N.Y.1989) (magistrate’s decision '“to ‘divest’ himself of jurisdiction” over extradition proceedings because fugitive was illegally

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brought to the United States “was erroneous as a matter of law”);

cf. United States v. Alvarez-Machain,

504 U.S. 655, 662-70 , 112 S.Ct. 2188 , 119 L.Ed.2d 441 (1992) (defendant’s abduction in Mexico and rendition to the United States for trial fell under the rule that trial court need not inquire how a defendant came before it). Even assuming the facts to be as described by Salazar, the governmental conduct is not “of the most shocking and outrageous kind,”

United States v. Matta-Ballesteros,

71 F.3d 754 , 763-64 n. 5 (9th Cir.),

amended,

98 F.3d 1100 (9th Cir.1996), such that review under the Due Process Clause of the Fifth Amendment might be triggered.

(3) An extradition treaty between the United States and Mexico was in force at all times relevant to this matter.

See

18 U.S.C. § 3181 (Historical and Statutory Notes); Declaration of Andrew N. Keller, ¶¶ 2-3, found at page 0001 of Filing of Original Formal Extradition Papers [“Formal Papers”], filed November 8, 2004.

(4) Salazar, is sought by Mexico for offenses for which the applicable treaty permits extradition. The offenses are punishable both in the State of Durango, Mexico, and in the State of California by deprivation of liberty, the maximum term of which is one year or greater. Aggravated Homicide is punishable under California Penal Code Sections 187 and 190. Attempted Aggravated Homicide is punishable under California Penal Code Sections 187 and 664(a).

. Extradition for the offenses charged in Mexico is not precluded by the political offense exception of Article 5(1) of, the Extradition Treaty. Under that provision, any question as to whether an offense is a political one is to be resolved by “the Executive authority of the requested Party,” which, in this case, is the Secretary of State.

Notwithstanding this, the Court finds that the offense for which extradition is sought was neither political nor of a political character. There has been no evidence presented that either the killing of Jose Manuel Diaz Medina or the attempted killing of Nestor de Jesus Vargas Perez and Norma Rocio Robledo Olvera constituted a political offense within the meaning of the Extradition Treaty. Because the crimes were not “pure political offenses” such as treason, sedition, or espionage — which offenses “have none of the elements of ordinary crimes” — the test that applies is the “incidence test.”

Quinn v. Robinson,

783 F.2d 776, 793 (9th Cir.1986). That test requires that Salazar establish (1) the occurrence of an uprising or other violent political disturbance at the time of the charged offense, or (2) that the charged offense was incidental to, in the course of, or in furtherance of the uprising.

See Quinn,

783 F.2d at 797, 817 . Salazar offers nothing in support of either prong. He argues only that the mere killing of a political figure is sufficient to transform the crime into a political offense or one of a political character. Salazar cites no authority for his proposition. A court may not rely on a fugitive’s mere assurance that a crime had some political purpose.

Barapind v. Enomoto,

400 F.3d 744, 751 (9th Cir.2005).

(5)Sufficient evidence has been presented to establish probable cause that Salazar, the individual appearing before the undersigned judicial officer, committed the offenses with which he is charged.

In witness statements provided to the Court, two witnesses state that prior to the actual killing, they heard Salazar say that he and his companions had come to kill Medina. (Statement of Rosendo Ontiveros [Formal Papers at 0199]; Statement of Flavio Agustín Campuzano Campuzano [Formal Papers at 0208]). A third wit

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ness, Roberto Ontiveros Soto, stated that he ran into Salazar and Salazar’s brother, who said that “they” were going to kill Medina. (Statement of Roberto Ontiveros Soto [Formal Papers at 0204-05]). Furthermore, each of these witnesses reported seeing Salazar in a vehicle with guns within two weeks of the killing. (Statement of Rosendo Ontiveros [Formal Papers at 0199]; Statement of Roberto Ontiveros Soto [Formal Papers at 0204]; Statement of Flavio Agustín Campuzano Campuzano [Formal Papers at 0207-08]). Two of the witnesses (Rosendo Ontiveros [formal papers at 0199] and Roberto Ontiveros Soto [formal papers at 0205]) also stated that they saw Salazar in a dark blue Grand Marquis two days before the killing. A dark blue Grand Marquis was found in the area (Formal Papers at 0149, 0216) and identified by Rosendo Ontiveros and Roberto Ontiveros Soto as being the vehicle that Salazar was in, or associated with, two days before the killing (Statement of Rosendo Ontiveros [Formal Papers at 0218]; Statement of Roberto Ontiveros Soto [Formal Papers at 0204-05, 0219] ).

Salazar challenges the statement made by Rosendo Ontiveros inculpating Salazar and argues that Rosendo Ontiveros later stated that he had no idea what he signed, that he was forced to sign the statement, and that he was told that he would be killed if he came to the United States to testify on Salazar’s behalf. But a fugitive in international extradition proceedings is not permitted to introduce evidence that contradicts the evidence submitted by the requesting country.

See Hooker v. Klein,

573 F.2d 1360, 1368 (9th Cir.1978) (fugitive “not permitted to introduce evidence on the issue of guilt or innocence”);

Desmond v. Eggers,

18 F.2d 503, 505 (9th Cir.1927) (“All of the authorities agree ... that matters which are only a defense to a trial on the merits are not admissible”);

Extradition of Mainero,

990 F.Supp. at 1218 (“Evidence that conflicts with that submitted on behalf of the demanding party is not permitted, nor is impeachment of the credibility of the demanding country’s witnesses.”). Such a fugitive is entitled only to offer evidence that explains the proof.

Hooker,

573 F.2d at 1368 . Although Salazar argues that his attack on the means by which the Mexican evidence was obtained constitutes a permissible “explanation” rather than a prohibited contradiction in the evidence, this is not the case. Salazar, in fact, challenges, the veracity and validity of Ontiveros’s statements. Because Salazar’s argument does not accept Mexico’s evidence as true, it is contradictory rather than explanatory within the meaning of extradition law.

See United States v. Peterka,

307 F.Supp.2d 1344, 1349 (M.D.Fla.2003) (at extradition hearing “the court shall exclude evidence that is proffered to ... challenge the credibility of witnesses”);

Extradition of Powell,

4 F.Supp.2d 945, 958 (S.D.Cal.1998) (fugitive “foreclosed from presenting evidence as to the unreliability of witnesses because ... [that would] change an extradition hearing into more than it is meant to be, i.e., a minitrial” and “it is inappropriate to present evidence contradicting that proffered by the Republic of Mexico”);

Extradition of Singh,

124 F.R.D. 571, 579 (D.N.J.1987) (“there is no issue better designed to convert this [extradition] proceeding into a dress rehearsal trial than a dispute between defendants and the Government as to whether [the witness] was coerced into making a confession’’);

cf.

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Eain v. Wilkes,

641 F.2d 504, 511 (7th Cir.1981) (recantation evidence contradicts requesting country’s proofs).

It is well-established that an extradition 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 ;

see also, e.g., Sakaguchi v. Kaulukukui,

520 F.2d 726 , 730-31 (9th Cir.1975) (“magistrate’s function is to determine whether there is ‘any’ evidence sufficient to establish reasonable or probable cause”). Because the evidence submitted by the requesting entity has been properly authenticated, the Court must consider the facts therein.

Extradition of Marzook,

924 F.Supp. 565, 592 (S.D.N.Y.1996).