Petition — Castillo v. Forsht
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“EC 24 1980
No. 79-1490 LMGYAEL RODAK JR, LER
in the
Supreme Court
of the
United States
October Term, 1980
Gustavo Castillo,
Petitioner
vs.
Donald D. Forsht,
U.S. Marshal
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Jeffrey S. Weiner, Esq.
Weiner, Robbins,
Tunkey & Ross, P.A.
Counsel for Mr. Castillo
M. Cheriff Bassiouni, Esq.
25 East Jackson Blvd., Suite 961
Chicago, Illinois 60604
Co-Counsel for Mr. Castillo
Se ——_ _ —
QUESTIONS PRESENTED
This is a petition for Writ of Certiorari by petitioner
Gustavo Castillo from orders of the United States Court
of Appeals for the Fifth Circuit denying his request for
habeas corpus relief to prevent his extradition to Mexico
for prosecution on charges of murder, attempted murder
and attempted kidnapping. The questions thereby arising
are:
1. Whether twice removed hearsay evidence
satisfies the probable cause requirement of Title 18
U.S.C. §3184 when the evidence consists of: a third
party's version (as distinguished from a “deposition”)
of an alleged photographic identification made from a
photocopy of a passport photo in Mexico, by the purported
victim of a kidnap attempt, who previously stated that
he was unable to describe his assailants, and which
alleged identification is not supported by independent
evidence linking it to its maker; and whether said
evidence should be found, as a matter of law, to be
facially defective, so as to give rise to the court’s duty to
consider the weight and credibility of such evidence in
the determination of probable cause, the failure of
which is a reversible abuse of discretion.
2. Whether the probable cause standard defined
in Title 18 U.S.C. §3184 and applied by this Court in
Fernandez v. Phillips, 268 U.S. 311 (1925) requires
mandatory consideration of the weight and credibility
of the evidence, or whether such consideration is wholly
within the unreviewable discretion of the extradition
magistrate; and what standards of admissibility and
competency of evidence are to be applied by the federal
courts in international extradition proceedings.
3. Whether, as a matter of law, evidence secured
by agents of a foreign sovereign through use of torture
should be inadmissible in determining probable cause;
and whether the Court should at least test the weight
and credibility of such evidence.
4. Whether the political offense exception to
extradition should encompass a revolution, armed rebellion
or civil strife which is in the nature of an ongoing,
sporadic opposition movement.
5. Whether the Court of Appeals committed plain
error by failing to consider the humanitarian issues
raised by petitioner concerning the strong likelihood
that he will suffer political persecution and physical
abuse and torture in the event he is extradited to
Mexico.
ii
TABLE OF CONTENTS
Questions Presented for Review................ i
S| ama 2s eee iii
hoe en 55 i Ns a iv
PN E. idiscbe! a kes ee 1
Statement of Jurisdiction...................... 2
DE Oe WOU. sas ech oe Piha es eo 2
Constitutional Provisions...................... 3
eenpement of tie Peete... .. >... ose cieccece si 4
Reason for Granting the Writ.................. 8
I. The Decision of the U.S. Court of Appeals
for the Fifth Circuit Court denied petitioner
his right to liberty without due process of
law, as guaranteed by the Fifth Amendment,
by failing to consider the weight and credibility
of twice-removed hearsay evidence, defective
on its face, in determining probable cause to
extradite under Title 18 U.S.C. §3184
A. The failure of the Fifth Circuit Court of
Appeals to consider the potential
inhumane treatment of petitioner in
light of a sworn affidavit from co-
defendant Orestes Ruiz Hernandez, in
iii
TABLE OF CONTENTS (Continued)
custody in Mexico, and part of this
record.
B. To urge this court to establish a standard
to guide lower courts in probable cause
hearings in International Extradition
Proceedings.
Med cer tees ve eis on 27
iv
INDEX
CASE CITATIONS
Ashcraft v. Tennessee,
I TOO Sk ok boc ces cee sees 17
Artukovic v. Boyle,
140 F. Supp. 245 (S.D. Cal. 1956),
aff'd sub. nom. Karadzole v. Artukovic, 247
F.2d 198 (9th Cir. 1957), vacated and remanded,
355 U.S. 393 (1958), surrender denied on remand
sub nom.
United States v. Artukovic, 170 F.Supp. 383
a nek ecs cece cesses 20, 21
Bingham v. Bradley,
241 U.S. 511 (1916)................... 12, 13, 14
Blackburn v. Alabama,
361 U.S. 199 (1960)...................0068. 17
Bram v. United States,
oe BE | 15
Brown v. Mississippi,
| LR 17
Charlton v. Kelly,
IE IED, oo ccs cs ces ecscces 12,14
Collins v. Loisel,
LS 9,10, 12, 14
CASE CITATIONS (Continued)
Page
Escobedo v. United States,
623 F.2d 1098 (5th Cir. 1980).............. 13, 20
Ex parte Kolcyznski,
ES | 25
Factor v. Laubenheimer,
ID. vc cue copeeeeccuvee 14
Fernandez v. Phillips,
| Ee 11,12
Filartiga v. Pena-Irdla,
630 F.2d 876 (2d Cir. 1980).................. 18
Freedman v. United States,
437 F.Supp. 1252 (N.D.Ga.1977)........... 10, 14
Frisbie v. Collins,
EE 16
Gallina v. Fraser, |
177 F. Supp. 356 (D. Conn. 1959) cert. denied
TE TRU. 055 6c enc c ccc eceses 20, 23
Garcia-Guillern v. United States,
450 F.2d 1189 (Sth Cir. 1971)................ 13
Glucksman v. Henkel,
es 12
vi
CASE CITATIONS (Continued)
Page
Greci v. Birknes,
GR? F.2a 966 (ist Cle. 1976): Ss ww ke ws. 12
Gusikoff v. United States, —
620 F.2d 459 (5th Cir. 1980)................. 13
Harris v. South Carolina,
ee ae OS a, ss vs Ki kw eN sco wba cee 17
Hooker v. Klein,
578 F.2d 1360 (9th Cir. 1978).............. 13,14
In re Aston [1896],
es caret OA. reed te oe We ie 21
In re Castiont [1891],
UN arc ia att eet rs 19, 20, 21
In re Ezeta,
Ge re ee eae. POO ec ee 19, 20
In re Gonzalez,
217 F. Supp. 717 (S.D.N.Y. 1963)............. 20
In re Meunier [1894],
ARERR at oe a OO RS eR Nie 20, 21
In re Mylonas,
187 F. Supp. 716 (N.D. Ala. 1960).......... 20, 21
Vii
CASE CITATIONS (Continued)
Page
Jimenez v. Aristeguieta,
Dan We ee Geet rs BOOS esc ceacacce 20
Jhirad v. Ferrandina,
G56 F’.20 470 (20 Cir. T97G). . cee et 13
Ker v. Illinois,
ete, I a i'n sve gaan avevace das 16, 17
McNamara v. Henkel,
ea Sas occne 5 be ck os oe ae 12
Malloy v. Hogan,
es Ge wan ee eaedewus's 17
Matter of McMullen,
(unreported, N.D. Cal. 1979)................ 20
Matter of Shapiro,
352 F. Supp. 641 (S.D.N.Y. 1973)........... 13, 14
Matter of Sindona,
450 F. Supp. 672 (S.D.N.Y.1978)............. 20
Matter of Ziyad,
(unreported, N.D. Ill. 1979)................. 20
Neeley v. Henkel,
Se I od oh ar a San wa chs 3-9 16, 23
Ornelas v. Ruiz,
a i 20
CASE CITATIONS (Continued)
Page
Peroff v. Hylton,
563 F.2d 1099 (4th Cir. 1977)................ 23
Peroff v. Hylton,
542 F.2d 1247 (4th Cir. 1976),
cert. denied US. os | ae 23
Ramos v. Diaz,
179 F. Supp. 459 (S.D. Fla. 1954)............. 20
Reid v. Covert,
a ECE 16
Rochin v. California,
ee ce. eee 18
Rogers v. Richmond,
Se ee I es. ........ 17
Rosado v. Civile tti,
621 F.2d 1179 (2d Cir. 1980)............ 16, 23, 24
Sabatier v. Dambrowski,
453 F. Supp. 1250 (D.R.I. 1978).............. 14
Sayne v. Shipley,
418 F.2d 679 (5th Cir. 1969)............ 10, 13, 14
Shapiro v. Ferrandina,
478 F.2d 894 (2d Cir. 1973) cert. dis. by
agreement of parties, 414 U.S. 884 (1973). .9, 13, 14
CASE CITATIONS (Continued)
Shapiro v. Ferrandina,
355 F. Supp. 563 (S.D.N.Y.1973)..........
Sindona v. Grant,
619 F.2d 167 (2d Cir. 1980)...............
Sindona v. Grant,
461 F. Supp. 199 (S.D.N.Y.1978)..........
Spano v. New York,
eee Sis AMD oi 505 0s Fawhw es wna
Turner v. Pennsylvania,
Bee RI I ss 6s Se kok vee cd aw aes
United States ex rel. Bloomfield v. Gengler,
507 F.2d 925 (2d Cir. 1974)...............
United States v. Herrera,
504 F.2d 859 (5th Cir. 1974)..............
United States v. Lira,
515 F.2d 68 (2d Cir. 1975), cert. denied,
Ge Sa ST CRU ics hes o> o vkceec Fh
United States ex rel Lujan v. Gengler,
510 F.2d 62 (2d Cir. 1975)................
United States v. Toscanino,
900 F.2d 267 (2d Cir. 1974)...............
CASE CITATIONS (Continued)
Page
United States v. Salzman,
646 F.2d S06 Ga Cir. 1076). : 3... 6. ca ete ee 23
Velez v. Nelson,
475 F. Supp. 865 (D. Conn. 1979)............. 24
Watts v. Indiana,
I A 8 or we od 17
Waits v. McGowan,
Gig FBe Bee woe Clr. 1978)... . bk os ccc ccewcss 18
Wilson v. Girard,
eR i fo SUSE Ore a weld 23
xi
e%
STATUTE AND TREATY CITATIONS
Page
Alien Tort Claims Act,
1 Stat. 73 (1789), current version at 28 U.S.C.
Baga Si AN a ema ncaa a ane RE 1 18
Draft Convention on the Prevention and Suppres-
sion of Torture,
E/CN.4/NGO/213, 1 February 1978.......... 19
The Four Geneva Conventions of 12 August 1949,
T.LA.S. Nos. 3362, 3363, 3364, 3365 (1956)... . . 21
Protocols Additional to the Geneva Conventions
of 12 August 1949,
10 June 1977, reprinted in Intl Rev. Red
Cross (Special Issue, August-September,
Ss dacs CES Ol cece eae «Me 21
Immigration and Nationality Act,
Pub. L. 96-212, Title II, §201(a), 94 Stat.102... 25
Inter-American Convention on Human Rights,
22 November 1969, 0.A.S. Off. Rec. Ser.
K/XVI/1.1, Doc. 65, Rev. 1, Cor. 1 (January 7,
eee en Coo a ge ee 19
International Covenant on Civil and Political
Rights,
16 December 1966, G.A. Res. 2200A,
21 U.N. GAOR Supp. (No. 16)49............ 18, 19
xii
STATUTE AND TREATY CITATIONS (Continued)
Page
1967 Protocol Relating to the Status of Refugees,
19 U.S.T. 6223, T.I.A.S. No. 6577 (1968). ...... 25
United States-Mexico Extradition Treaty,
es BE RSs oss ik Salah sn Sas sad 4,24
Universal Declaration of Human Rights,
10 December 1948, G.A. Res. 217 A (III)..... 18, 25
United States-Mexico Treaty on the Transfer of
Prisoners,
28 U.S.T. 7399, T.I.A.S. No. 8718, and
implementing legislation at 18 U.S.C. §4108
| __ - SiRRLREI! SRIO a ai Ta eee 24
a I cs eee vines oe 4,10, 11
re, ok es ew 18
I pe 0 Ca 18
Federal Rules of Criminal Procedure,
er Arum, WN TP, go vs vec decked conen 11
xiii
MISCELLANEOUS CITATIONS
Page
Abramovsky, “A Critical Evaluation of the American
Transfer of Penal Sanctions Policy,” 25 Wisc.
Es A Te Re rect ivy oy previ ose os dew 24
Abramovsky and Eagle, “A Critical Evaluation of
the Mexican-American Transfer of Penal
Sanctions Treaty,” 64 Jowa L. Rev. 274 (1979). 24
Bassiouni, “Prolegomenon to Terror Violence,”
12 Creighton L. Rev. 745 (1979). ............ 22
Bassiouni, “‘Perspectives on the Transfer of
Prisoners Between the United States and
Mexico and the United States and Canada,”
11 Vand. J. Transnatl L. 249 (1978)........... 24
Bassiouni, “An Appraisal of Torture in Inter-
national Law and Practice: The Need for an
International Convention for the Prevention
and Suppression of Torture,” 48 Revue Inter-
nationale de Droit Penal (1978, Nos. 3-4)...... 19
M. C. Bassiouni (ed.), International Terrorism and
Political Crimes, (1975). ...........20c0e00. 22
M. C. Bassiouni, /nternational Extradition and
World Public Order (1974)................ 19, 22
R. Friedlander (ed.), Terrorism (2 vols. 1979-1980).. 22
XIV
MISCELLANEOUS CITATIONS (Continued)
Page
Hearings on International Law of the Committee
on the Judiciary, louse of Representatives,
ist Sess. 95th Cong., Septenber 16, October 6,
PAT eo mR FI nates pre oS 24
Hearings Before the Sub-Committee on Peniten-
tiaries and Corrections of the Committee on
the Judiciary, United States Senate, Ist Sess.
Se Gin PU EO SOEE eh ew rassees 24
Hearings Before the Committee on Foreign Relations,
United States Senate, lst Sess. 95th Cong.,
eg Renter ne ase 24
Mallison and Mallison, “The Juridical Status of
Irregular Combatants under the International
Humanitarian Law of Armed Conflict,” 9 Case
W. Hes. J. PMT LE. FOUGTT). . 0 occ ccc wks 21, 22
Vagts, “A Reply to a Critical Evaluation of the
Mexican-American Transfer of Penal Sanctions
Treaty,” 64 Jowa L. Rev. 325 (1979).......... 24
P. Weyden, Bay of Pigs (1979)...............005. 22
XV
OPINIONS BELOW
The opinion of the court of Appeals appears at 623
F.2d 1098 (1980) Appendix A, infra, p.p. 1-21. The
opinion of the United States District Court, Southern
District of Florida is unreported. The Court of Appeals
affirmed the judgment of the District Court.
JURISDICTION
The judgment of the Court of Appeals for the
Fifth Circuit was entered on August 14, 1980. See
Appendix A, p. 22, infra. The petition for rehearing
was denied on September 29, 1980. This petition for
certiorari was filed less than 90 days from the date
aforesaid. The jurisdiction of this court is invoked under
28 U.S.C. §2241.
LIST OF ALL THE PARTIES
TO THE PROCEEDINGS BELOW
Gaspar Eugenio Jimenez Escobedo,
petitioner-appellant
Vv.
United States of America,
respondent-appellee
(No. 79-1480),
Gustavo Castillo,
petitioner-appellant
Vv.
. Donald D. Forsht, U.S. Marshal,
respondent-appellee
(No. 79-1490).
CONSTITUTIONAL PROVISION INVOLVED
Constitution of the United States, Amendment V:
“No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a grand jury,
except in cases arising in the land or naval
forces, or in the militia, when in actual service
in time of war or public danger; nor shall any
person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty,
or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.”
STATEMENT OF FACTS
The facts relevant to the questions presented by
this petition are uncontroverted and therefore may be
introduced to the Court in a summary fashion.
Extradition Request: On December 8, 1977 the
extradition of petitioner Gustavo Castillo and Gaspar
Eugenio Jiminez Escobedo (who is not a subject of this
petition), both of whom are United States citizens, was
requested by the Government of Mexico pursuant to
the United States-Mexico Extradition Treaty of 1899,
31 Stat. 1818, T.S. 242 (hereafter Treaty). Evidentiary
hearing: On May 18, 1978 an evidentiary hearing was
held before a United States Magistrate pursuant to 18
U.S.C. §3184, who determined that both individuals
were requested by Mexico on the basis of the treaty,
that the crimes for which they are sought are extraditable
offenses under the Treaty, and that probable cause
existed to support the extradition request; and on May
31, 1978 a Certificate of Extraditability and Order of
Committment was issued for petitioner Castillo and
for Escobedo. Petition for Writs of Habeas Corpus: On
June 21 petitioner Castillo and Escobedo, respectively,
filed separate petitions for writs of habeas corpus,
seeking to prevent their extradition. On December 26,
1978 the Federal District Court for the Southern District
of Florida entered orders dismissing the two petitions.
Proceedings in the United States Court of Appeals:
The Fifth Circuit affirmed the district court’s order
denying the habeas corpus petitions as to both petitioners,
although the evidence was different as to each petitioner.
The court held that (1) probable cause existed to believe
that petitioners had committed the alleged offenses
even though there was in evidence, of a confession
obtained by torture; (2) that, in effect, the probable
cause was based on the twice-removed hearsay evidence
of a photographic identification allegedly made by a
victim and presented as part of the extradition documents
submitted by the requesting state; (3) that even though
the relators were politically motivated in their conduct,
the evidence did not demonstrate the existence of a
violent political disturbance in the course of which and
as an incident of which the alleged offenses were
committed and that, therefore, the political offense
exception to extradition was inapplicable; (4) that executive
discretion to grant extradition did not violate the due
process clause of the Fifth Amendment, despite the
absence of guidelines; (5) that the refusal by Mexico to
extradite its nationals did not preclude United States
courts from granting extradition of U.S. citizens to
Mexico, as modification of that practice, which is at
variance with the Treaty, is a matter for the executive;
and (6) that the likelihood of political persecution and
other humanitarian considerations lies exclusively within
the determination of the executive. The opinion and
judgment of the Court of Appeals is the subject of the
instant petition.
It is alleged by the Mexican Government that in
July, 1976, petitioner Castillo, a naturalized U.S. citizen
of Cuban origin, along with Escobedo and Orestes Ruiz
Hernandez, who is now imprisoned in Mexico, travelled
to Merida, Mexico and that they planned and attempted
to kidnap the Cuban Consul in Merida, Daniel Ferrer
Fernandez and exchange him for Cuban political prisoners.
During the alleged attempt, it is asserted that the
Consul’s driver-bodyguard was shot and killed; that
shots were fired at the Consul, but that the Consul and
the assailants escaped; that Escobedo was arrested by
Mexican authorities and subsequently escaped while
Ruiz, who was also arrested, remains in custody in
Mexico; that petitioner Castillo was never arrested by
Mexican authorities and is and has been in the U.S. and
is now in the custody of U.S. Marshal Donald D. Forsht.
The Mexican Government subsequently sought the
extradition of petitioner for the alleged offenses of
murder, attempted murder and kidnapping.
At the extradition hearing, the various documents
introduced to establish probable cause included, inter
alia, a xeroxed copy © petitioner Castillo’s passport
photo allegedly shown to Merida’s Cuban Consul
Fernandez and which was allegedly identified by him
to unidentified Mexican law enforcement personnel.
The “deposition” purportedly given by Consul Fernandez
and in which petitioner was said to have been identified
as one of the attackers was not presented among the
extradition documents, nor was there any deposition
or statement by the Mexican officer who allegedly took
the deposition of the Cuban Consul. There was instead
nothing more than a third party’s report that such a
deposition was taken on the day of the attack. The
documents presented further indicated that petitioner
Castillo’s passport was found in Escobedo’s luggage at
the time of Escobedo’s arrest.
The Government also introduced in evidence over
counsel's objections the torture-coerced statements of
Escobedo and Hernandez, which implicated petitioner
Castillo in the alleged crimes. That these statements
were obtained by torture was determined and documented
in a written statement given Mr. Juan Ramirez (an
American attorney) and Mr. Jeffrey Weiner (counsel
for petitioner) during a private interview with Hernandez
while he was incarcerated in Mexico, prior to the
evidentiary hearings in this case. These statements of
Mr. Hernandez are part of the record. Hernandez
described repeated acts of torture by the Mexican
police. In particular, he was subjected to electrical
shocks applied to his genital. and other parts of his
body. The electrical shocks were administered by means
of a steel chain with a ring at one end. His toe and his
penis were at different times placed in the ring, and his
body was wetted so as to reduce resistance to the
electric current. The shocks were inflicted upon Hernandez
while he lay naked and blindfolded. That treatment
continued for one night and was intended to extract a
confession from Hernandez, which confession the U.S.
government in these proceedings asked the U.S. courts
to accept unequivocally as trustworthy and voluntary.
Francisco Carmargo, also imprisoned in Mexico at
this time (and whose testimony also is part of the
record) substantiates the torture of Escobedo. While in
jail, Carmargo attested to the fact that he heard
screaming, and upon seeing Escobedo after the screaming
was heard he learned that it was Escobedo who screamed
during the course of being tortured. Escobedo told
Carmargo of being tortured, beaten and electrically
shocked by the interrogating Mexican police. Carmargo
stated that he heard repeated yelling and screaming;
that he remembered hearing “No, no, no don’t do that.”
Escobedo alse told Carmargo that after being tortured,
he submitted to police demands and made statements
allegedly incriminating himself and petitioner Castillo.
The iortured “confessions” were not considered by the
Fifth Circuit in the probable cause determination, leaving
the twice-removed uncorroborated hearsay statements
7
of the Cuban Consul as essentially the primary evidence
upon which the finding of petitioner's extraditability
was based. Castillo’s passport was purportedly found
in Escobedo’s luggage when he was arrested in Mexico.
The Fifth Circuit held that “this evidence establishes
probable cause to believe that [petitioner] committed
the crimes charged.” 623 F.2d at 1102. The court failed
_ to inquire into the weight and credibility of that evidence.
Finally, it was argued by petitioner at the extradition
hearing that such crimes as Mexico alleged were
motivated by political ideology and were to be regarded
as part of an ongoing albeit sporadic struggle against
the Marxist dictatorial regime dominating Cuba. The
political and ideological motivation for those acts is
evidenced by the history of the petitioner’s anti-Castro
activities in the U.S., the nature of the act (the alleged
kidnap attempt of the Cuban Consul in Merida), the
complex operation allegedly committed by petitioner
and others, the extraordinary personal risks involved
in such an alleged scheme, and the expressed desire of
petitioner and others to strike a blow against Castro
and Communism. Any individual who engaged in such
a struggle, petitioner argued, would be acting out of
political conviction and to effectuate political reform
with no thought of personal gain.
REASONS FOR GRANTING THE WRIT
1. A photographic identification introduced into
evidence by means of twice removed hearsay testimony
unaccompanied by an affadavit establishing a link to
its maker is insufficient to establish probable cause. At
the extradition hearing the evidence incriminating
petitioner consisted primarily of the unconfirmed
statement of a Mexican official who stated that another
Mexican official was first told by the Cuban Consul
that he (the Cuban Consul) could not describe his
assailants, but subsequently the same Consul allegedly
recognized a photocopy of petitioner's passport
photograph. No affadavit or other statement by the
Consul or by the Mexican official to whom he spoke
was introduced in the record to verify or corroborate
the testimony of the third party statement relied upon
at the extradition hearing. There is, in short, nothing
more than the unsupported statement of that official
who had no direct knowledge of the occurrence of the
alleged identification or of the victim’s alleged account
thereof.
Petitioner is cognizant of the well-established practice
that no affadivit is required to corroborate photographic
identification in extradition proceedings, nor is affadavit
evidence required generally for probable cause purposes.
See Collins v. Loisel, 259 U.S. 309 (1922); Shapiro v.
Ferrandina, 478 F.2d 894 (2d Cir. 1973), cert. dis. by
agreement of parties, 414 U.S. 884 (1973). Nevertheless,
the facts presented in the instant petition raise the
issue of the weight and credibility to be accorded to
such evidence in extradition hearings, a question not
heretofore considered by this Court. Petitioner maintains
that while questions of weight and credibility are within
the discretion of the extradition magistrate, the evidence
here presented by the Mexican government is on its
face so questionable as to give rise to an abuse of
discretion where the court expressly fails to consider
weight and credibility. The inherent deficiencies of
that evidence create such substantial doubt as to its
credibility that reasonable grounds to believe that
petitioner committed or was in any manner implicated
9
in the alleged offenses could not as a matter of law be
deemed sufficiently established notwithstanding the
discretion of the extradition magistrate. Thus, petitioner
maintains that the court’s failure to expressly consider
the weight and credibility of the Mexican documents
worked a significant deprivation and in effect prevented
petitioner from demonstrating the absence of probable
cause. It should, therefore, be considered a reversible
abuse of discretion. See Collins v. Loisel, supra; Sayne
v. Shipley, 418 F.2d 679 (5th Cir. 1969); Freedman v.
United States, 437 F. Supp. 1252 (N.D. Ga 1977).
The Fifth Circuit correctly stated that weight and
credibility should be considered and that United States
courts require competent evidence, but it failed to
state whether it was relying on a standard requiring
mandatory consideration of weight and credibility or
one which leaves that consideration to the uncontrolled
discretion of the magistrate. It also failed to review the
magistrate’s discretion, regardless of the standard that
may have been implicit in his determination since no
explicit statement of the standards of weight and
credibility was enunciated. There is, moreover, no federal
standard to guide the courts on this issue and, therefore,
no opportunity for individuals such as petitioner to
test on appeal whether a magistrate has properly applied
or abused his discretion in failing to consider the weight
and credibility of extradition documents and evidence
supporting the requirement of probable cause under
Section 3184.
10
Had the magistrate weighed the trustworthiness of
the evidence the most likley finding would have been
that the twice-removed hearsay testimony described
above cannot reasonably support proof of probable
cause. The only corroborating evidence against the
petitioner is that of tortured “confessions.” The Fifth
Circuit did not, however, reach the issue of torture as
it did not rely on it in its review of the magistrate’s
decision. Thus, the double hearsay evidence stands
wholly unsubstantiated as proof of probable cause. In
these circumstances, it cannot be said that probable
cause as required by Section 3184 and as applied in
accordance with U.S. law was established. If there is
any standard of competency, it has not been expressly
defined in any decision of this Court.
2. The federal probable cause standard fails to
resolve the conflict among the jurisdictions concerning
whether the weight and credibility of evidence is a
mandatory or discretionary matter. The Fifth Circuit's
finding that probable cause existed largely on the basis
of twice-removed hearsay testimony simply underscores
the more pervasive problem of whether the inquiry into
probable cause envisions mandatory or discretionary
consideration by the extradition magistrate of the
weight and credibility of the evidence presented by the
Government on behalf of a requesting state. No
pronouncement on probable cause has been made by
this Court since Fernandez v. Phillips, 268 U.S. 311
(1925), and as a consequence conflicting standards have
developed in the federal courts. These standards are also
in conflict with the federal probable cause standard as
stated in Federal Rules of Criminal Procedure, rule 4(a),
(b) which are applicable to extradition hearings, save for
this Court’s finding to the contrary.
11
Petitioner does not contend that he is entitled to
introduce exculpatory evidence, as this is contrary to
Charlton v. Kelly 229 U.S. 447 (1913) and Glucksman v.
Henkel 221 U.S. 508 (1911), but under Collins v. Loisel,
supra, he is entitled to introduce evidence to rebut or
nullify probable cause. Such evidence in this case goes
directly to the issue of weight and credibility of the
government’s evidence. Thus, the thrust of petitioners
claims are that the magistrate’s failure to consider
weight and credibility of the challenged and questionable
evidence, the reviewing court’s failure to inquire into
the issue of abuse of discretion for failure to do so, and,
in addition, the absence of clear federal guidelines on
the subject, as is evidenced by the conflicting opinions
of the circuits and districts discussed below, constituted
error.
Probable cause in extradition matters, as codified
under 18 U.S.C. §3184, was defined in Fernandez,supra,
as requiring that competent legal evidence be presented
so as to reasonably warrant the conclusion that the
relator (here petitioner) committed the offense for which
he is sought and not simply that he is accused or
suspected of doing so. See also Collins v. Loisel, supra
Bingham v. Bradley, 241 U.S. 511, 517 (1916); McNamara
v. Henkel, 226 U.S. 520, 524 (1913). Uncertainty and
conflict exist, however, among the circuits and districts
concerning precise guidelines to decision. For example,
in Greci v. Briknes, 527 F.2d 956 (1st Cir. 1976) and in
Sindona v. Grant, 461 ¥. Supp. 199 (S.D.N.Y. 1978), 619
F.2d. 167 (1980) the courts stated that the probable
cause standard must be satisfied in accordance with
the law of the requested state; that is, it must meet the
federal standard as defined by U.S. legislation and
interpreted by the United States Supreme Court. Some
federal courts, however, have construed this standard
12
as requiring that the evidence be sufficient to show
reasonable grounds to believe the accused guilty.
Escobedo v. United States, 623 F.2d 1098; Gusikoff v.
United States, 620 F.2d 459 (5th Cir. 1980); Garcia-
Guillern v. United States, 450 F.2d 1189 (5th Cir. 1971);
Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1969). In those
cases the weight and credibility of the evidence was
apparently to be considered as a matter wholly within
the court’s discretion. Other courts, however, have
required that the evidence be “competent”, Hooker v.
Klein, 573 F.2d 1360, 1368 (9th Cir. 1978), or even that
the evidence be both competent and sufficient, Shapiro
v. Ferrandina, 355 F. Supp. 563 (S.D.N.Y. 1973). Finally,
some courts have interpreted probable cause in a manner
suggesting that the requesting state make a prima
facie showing, thereby imposing a significantly higher
standard under which it is mandatory that the weight
and credibility of the evidence be considered. Jhirad v.
Ferrandina, 536 F.2d 478 (2d Cir. 1976); Matter of Shapiro,
352 F. Supp. 641 (S.D.N.Y. 1973). However, neither
Jhirad nor Shapiro regarded the extradition hearing
as akin to a trial so that the right of the accused to
confront the witnesses against him concededly does
_ not apply. See Bingham v. Bradley, supra at 517. Nor
did those courts view the habeas corpus proceeding as
a full appeal. Petitioner does not contend that it is, but
that it is within the scope of habeas corpus to review
the lack of probable cause standards applied, and the
resulting abuse of discretion of the extradition magistrate
(inter alia) in applying these standards.
Notwithstanding the higher standard of Jhirad
supra and Shapiro supra, the underlying policy that
extradition treaties are to be liberally construed so as
to give effect to the intention of the contracting parties
13
was not vitiated. See Factor v. Laubenheimer, 290 U.S.
276, 298 (1933); Bingham v. Bradley, supra. It is equally
clear that the showing of proof amounting to a prima
facie case does not entail the additional requirement of
making other forms of evidence admissible. Thus, evidence
of alibi or of defense such as insanity or of newly
discovered exonerating evidence continue to remain
discretionary. See e.g., Charlton v. Kelly, supra; Hooker
v. Klein, supra; Peroff v. Hylton, 562 F.2d 1099 (4th Cir.
1977). Similarly, the right of courts to bar evidence
which merely contradicts probable cause or which
presents a different version of events will not be
affected. See Hooker v. Klein, supra; Shapiro v.
Ferrandina, supra; Freeman v. United States, supra;
Matter of Shapiro, supra. Finally, the requirement that
explanatory evidence tending to rebut or obliterate
probable cause be admissible remains valid. See Collins
v. Loisel, supra; Sayne v. Shipley, supra; Freedman uv.
United States, supra. Cf. Sabatier v. Dambrowski, 453
F. Supp. 1250 (D.R.I. 1978)
The great disparity among the circuits and districts
concerning the proper interpretation and application
of probable cause in extradition cases means that
contradictory and inequitable results obtain in
substantially similar circumstances since persons accused
in some jurisdictions will be afforded the opportunity
to challenge the weight and credibility of the evidence,
while persons in other jurisdictions will not. The variance
in procedural rights in concert with the attenuation of
substantive rights is so significant as to constitute
denial of due process and equal protection under the
Fifth Amendment and makes imperative a conclusive
pronouncement by this Court.
14
Compelling reasons exist for requiring a uniform
standard, at least where the evidence is facially defective,
as in the instant petition. The extradition court should
consider the weight and credibility of the evidence
presented by the government and the failure to do so
constitutes a reviewable question, which, when found to
be an abuse of discretion, is reversible error. A uniform
test would preserve the integrity of the U.S. judicial
process against abuses by the government and by
requesting nations seeking to use the U.S. judiciary for
their purposes, and would secure the applications of
Fifth Amendment due process and equal protection
standards to all individuals by establishing a procedure
reasonably calculated to produce a fair, evenhanded and
proper result. It is essential in the circumstances
described herein to effectively define and delineate the
parameters of discretion available to magistrates and to
prescribe appropriate guidelines for reviewing courts.
3. Evidence secured by torture should, as a matter
of law, be inadmissible to determine probable cause.
Once it is determined that the evidence, as discussed
above, fails to establish probable cause, the focus of the
instant petition necessarily shifts to consideration of
the allegedly incriminating confessions by Escobedo
and Hernandez, which the Mexican government secured
by means of torture. The sworn testimony relating to
the fact of torture was, and remains, uncontroverted. To
find such evidence admissible in the U.S. courts is
to condone disregard for the most basic standards of
due process and to permit a foreign sovereign to demean
and mock the integrity of the judicial process of the
United States. In any event, in accordance with a principle
which this Court has upheld since 1897 in Bram v.
15
United States 168 U.S. 532, the incompetency of a
confession because it is coerced is a question controlled
by the Fifth Amendment self-incrimination clause and
the Court in the present petition should not disregard
the question. The Court of Appeals did not address this
issue as part of the probable cause question (623 F.2d at
1103-1104), but summarily dealt with it in a footnote
(623 F.2d at 1102, n. 13).
Petitioner notes initially that the present contention
is outside the traditional rule of noninquiry. That rule
bars the courts of the requested state from extending
constitutional protections extraterritorially to individuals
before the court for acts committed by agents of a
foreign government. Neeley v. Henkel, 180 U.S. 109
(1901); Rosado v. Civiletti, 621 F.2d (2d Cir., 1980) (amply
describing what appears to be the shocking common
practice of torture by Mexican police of persons under
interrogation and general conditions in Mexican prisons);
United States v. Lira, 515 F.2d 68 (2d Cir. 1975), cert.
denied, 423 U.S. 847 (1975). Constitutional rights extend
extraterritorially, however, to protect United States
citizens against the illegal conduct of U.S. agents abroad.
Reid v. Covert, 354 U.S. 1 (1957); United States v.
Toscanino, 500 F.2d 267 (2d Cir. 1974). See also United
States ex rel Lujan v. Gengler, 510 F.2d 62 (2d Cir.
1975); United States v. Herrera, 504 F.2d 859 (5th Cir.
1974).
Petitioner does not challenge the jurisdiction of
the court and recognizes that except in particularly
shocking circumstances, United States v. Toscanino,
supra, it is no defense under existing case law to a state
or federal criminal charge that a defendant was
illegally arrrested or forcibly brought within the court’s
16
jurisdiction. Frisbie v. Collins, 342 U.S. 519 (1952); Ker
v. Illinois, 119 U.S. 436 (1886). The conduct of foreign
officials becomes an issue, however, where as a result
of that conduct there are substantive grounds, as here,
upon which a U.S. court is asked to rely and where the
judicial processes of the United States are invoked on
the basis of conduct patently offensive and violative of
minimum standards of criminal justice. For U.S. Courts
to perfunctorily acquiesce to a foreign nation’s accusations
against a U.S. citizen generates judicial impotence among
American courts and is tantamount to approving practices
which American jurisprudence finds repugnant. Petitioner
maintains that as a matter of sound judicial policy,
United States courts should refuse to give legal effect
in the United States to acts of torture by foreign officials
and should accordingly hold that, as a matter of law,
evidence secured by means of torture is inadmissible
in U.S. extradition proceedings.
That conclusion is compelled by the mandates of
the Fifth Amendment due process and privilege against
self-incrimination clauses and is additionally founded
on the requirements of United States rules of criminal
procedure. The long history of this Court’s opinions
against the inadmissibility of confessions involuntarily
extracted by means of torture or other forms of coercion
need not be elaborated upon. See, e.g., Malloy v. Hogan
378 U.S. 184 (1964); Rogers v. Richmand 365 U.S. 534
(1961); Blackburn v. Alabama 361 U.S 199 (1960); Spano
v. New York 360 U.S. 315 (1959); Turner v. Pennsylvania
338 U.S. 62 (1949); Harris v. South Carolina 338 U.S. 68
(1949); Watts v. Indiana 338 U.S. 49 (1949); Ashcraft v.
Tennessee 322 U.S. 143 (1944); Brown v. Mississippi
297 U.S. 278 (1936). The principal issues are, therefore,
whether a tortured confession, evident on the face of
17
the record, is admissible in U.S. courts; whether the
courts will not at the very least regard its weight and
credibility as suspect; and whether as a matter of judicial
policy it should not be excluded. The integrity of the
judicial process and that of the judicial system of the
United States preclude reliance on any evidence which
is obtained by conduct so contrary to the Constitution
that it “‘offends those canons of decency and fairness
which express the notions of justice of English-speaking
peoples.” Rochin v. California, 342 U.S. 165, 172 (1952).
Torture is so inherently abhorent to the standards of
civilized justice of the United States and so contrary to
its public policy that United States judicial action cannot
be predicated upon actions so flagrantly abusive of an
individual’s constitutional and statutory rights.
In essence petitioner maintains that although some
of the information presented in the Mexican governments
documents may appear to be damaging to petitioner,
he should be afforded the opportunity to attack their
admissability and reliability. Although it is not the
position of U.S. courts to rule on the merits of foreign
legal processes, the uses which are made of those
processes in the United States are within the power of
U.S. courts to consider. It will be noted, in this regard,
that long-standing U.S. legislative policy was clearly
enunciated in the first Judiciary Act of 1789 in the
form of the Alien Tort claims Act 1 Stat. 73, 77 (1789),
current version at 28 U.S.C. §1350 (1976), whereby an
alien can file suit against a foreign government for
torture. Filartiga v. Pena-Irola, __ F.2d __ (2d. Cir. 1980).
Cf. Waits v. McGowan, 516 F.2d 203 (3rd Cir. 1975)
(holding that while petitioner failed to state a claim
under 42 U.S.C. §§1983 and 1985, a right of action
nevertheless existed even in extradition proceedings).
It is also noteworthy that the U.S. is bound under
18
international law to the prohibition of torture and thus
its consequences. See the Universal Declaration on
Human Rights Article V, 10 December 1948, G.A. Res.
217 A (III); the International Covenant on Civil and
Political Rights Article VII, 16 December 1966, G.A.
Res. 2200 A, 21 U.N. GAOR Supp. (No. 16) 49; the
Inter-American Convention on Human Rights, 22
November 1969, 0.A.S. Off. Rec. Ser. K/XVI/1.1, Doc.
65, Rev. 1, Cor 1 (Jan. 7, 1970). See also, the Draft
Convention on the Prevention and Suppression of Torture
E/CN.4/NGO/213 1 February 1978 (presently before the
U.N. Commission on Human Rights and soon to be
completed declaring torture an “international crime”
(Article I). See also Bassiouni, “An Appraisal of Torture
in International Law and Practice: The Need for an
International Convention for the Prevention and
Suppression of Torture” 48 Revue Internationale de
Droit Penal 1978, No. 3-4).
4. The context of the political offense exception
to extradition which encompasses a revolution or armed
rebellion should also extend to ongoing resistance
movements.
The doctrine of the political offense exception
applicable in the instant petition is defined in general
terms by the political incidence test, which was adopted
from the British case of In re Castioni [1891] 1 Q.B. 149.
The political incidence test contemplates a two-fold
standard in order that a common crime linked to a
political objective be considered as a political offense:
(1) there must be a revolt or some other violent political
disturbance or upheaval; and (2) the act for which
extradition is sought must be incidental thereto or
form a part thereof. In re Ezeta, 62 F. 972 (N.D. Cal.
1894). It is implicit in this test that the individual be
19
politically motivated. See generally M.C. Bassiouni,
International Extradition and World Public Order (1974)
370-428.
A conflict exists among the circuits and districts,
however, with respect to the second component of the
test. Some courts have required a very strong relationship
between the act and the political objective sought thereby.
Ornelas v. Ruiz, 161 U.S. 502 (1846); Escobedo v. United
States, supra; Gallina v. Fraser, 177 F. Supp. 356 (D.
Conn. 1959); Jimenez v. Aristequieta, 311 F.2d 547 (5th
Cir. 1962); In re Gonzalez, 217 F. Supp. 717 (S.D.N.Y.
1963); Matter of Sindona, 450 F. Supp. 672 (S.D.N.Y.
1978); Matter of Ziyad (unreported, N.D. Ill. 1979, now
pending before the Seventh Circuit); Matter of McMullen
(unreported, N.D. Cal. 1979); whereas other courts have
required a very attenuated connection between act
and objective. Jn re Ezeta, supra; Ramos v. Diaz, 179 F.
Supp. 459 (S.D. Fla. 1954); Artukovic v. Boyle, 140 F.
Supp. 245 (S.D. Cal. 1956), aff'd sub nom. Karadzole v.
Artukovic, 247 F.2d 198 (9th Cir. 1957), vacated and
remanded, 355 U.S. 393 (1958), surrender denied on
remand sub nom. United States v. Artukovic, 170 F.
Supp. 383 (S.D. Cal. 1959); In re Mylonas, 187 F. Supp.
716 (N.D. Ala. 1960). Additonally, decisions which require
the existence of a strong connection or link also demand
that the act be directed against the estate or its supporting
structures, while decisions which require a minimal
showing of incidence do not impose that other
requirement. In short, the U.S. decisions follow two
distinct and irreconcilable directions depending upon
the court’s perception that the accused demonstrated a
strong or a weak linkage among his conduct, his ideological
objective and the political context in which it occurred.
It is also significant that in adopting the Castioni
standard United States courts have consistently failed
20
to consider Jn re Meunier [1894] 2 Q.B. 415, which
modified the Castioni test.and in which the political
incidence test was held to require that there be two or
more parties in the state, each seeking to impose its own
form of government. See also In re Aston [1896] 1
Q.B. 108. Nothing of course requires U.S. Courts to
follow English decisions, but where the adoption of a
given test is made and followed on the assumption that
it has not been altered, it is relevant to raise the issue
of its continued validity. In fact if the Meunier and
Aston standards amending Castioni were followed, the
political offense exception would apply to the acts
attributed to petitioner since those acts were directed
against the state or its agents or officials. Adaptation
of the Meunier principle to Castioni would additionally
avoid future anomalous results, as occurred, for example,
in the Artukovic cases, supra, and Jn re Mylonas, supra.
The disarray apparent in political offense exception
cases leads to inconsistent application of the political
incidence test, making the continued utility of that test
uncertain and of questionable validity. The test is,
moreover, by virtue of its all too flexible application,
subject to political considerations, as is evident from
the government’s position on this issue. Furthermore,
this court should reconsider the political offense exception
in light of contemporary political and international
developments such as the protean concept of civil strife
and expanding protection of humanitarian interests
and rights. See generally the Four Geneva Conventions
of 12 August 1949, T.1.A.S. Nos. 3362-3363-3364-3365
(1956); as amended in Protocols Additional to the Geneva
Conventions of 12 August 1949, 10 June 1977, reprinted
in Int'l Rev. Red Cross (Special Issue, August-September,
1977) (particularly on the issue of what constitutes a
conflict of a non-international character in Protocol I,
21
Articles 43 and 44). See also Mallison and Mallison,
“The Juridical Status of Irregular Combatants under
the International Humanitarian Law of Armed Conflict,”
9 Case West. Res. J. Int'l L. 39 (1977). The Court also
should consider the need to redefine the concept of
political offenses in the context of rising international
terrorism. See Bassiouni, “Prolegomenon to Terror
Violence,” 12 Creighton L. Rev. 745 (1979); M. C. Bassiouni
(ed.), International Terrorism and Political Crimes (1975);
R. Freidlander (ed.), Terrorism (2 Vols., 1979-80).
For the reasons stated above, petitioner urges the
Court to reconsider the political offense exception and
to articulate the standard in a manner that takes into
account the necessities of modern civil and political
unrest, for which position held in the late 1800's are no
longer viable. See M. C. Bassiouni, International
Extradition and World Public Order 411-425 (1974).
The strict, seemingly literal demand under the antiquated
test for a full scale revolution, with the masses storming
the state capital, is no longer a realistic criteria to
come under the political offense exception. The operative
facts of the instant petition afford the Court that
opportunity. There is, first of all, an ongoing conflict
between former Cuban nationals, many of whom including
petitioner, are naturalized U.S. citizens, and the Marxist
regime of Fidel Castro. That conflict took the form of
an armed rebellion in 1961 officially supported by the
U.S. government,(see generally P. Weyden Bay of Pigs
(1979)),and has erupted sporadically ever since in various
forms and is evidenced by the facts giving rise to the
present case. The continuity of the conflict is further
demonstrated by the recent massive influx of Cuban
refugees who have been given political asylum in the
United States in recognition of the political unrest,
discontent and struggle in Cuba.
22
A multi-dimensional question of significant national
importance is therefore presented: the meaning of civil
strife in its contemporary context; the erroneous
interpretation of English law described herein; and the
conflicting decisions of the circuits and districts owing
to the absence of legislative guidelines and this Court's
lack of contemporary pronouncements on the subject.
5. Plain error was committed by reason of the
court's failure to consider the humanitarian issues
concerning the likelihood that petitioner will suffer
political persecution and physical abuse if he is extradited.
The Fifth Circuit’s perfunctory rejection of petitioner's
claim that extradition be barred for humanitarian reasons
was based solely on the finding that such questions are
exclusively executive matters. 623 F.2d at 1107. That
holding is directly contrary to U.S. international legal
obligations, U.S. legislation and the position of other
circuits that this country has an interest, through its
courts, in the treatment of its citizens abroad. Rosado
v. Civiletti, supra; Peroff v. Hylton, 542 F.2d 1247 (4th
Cir. 1976), cert. denied 429 U.S. 1062 (1977); United
States ex rel. Bloomfield v. Gengler, 507 F.2d 925 (2d
Cir. 1974); Gallina v. Fraser, 278 F.2d 22 (2d Cir. 1960),
cert. denied, 364 U.S. 851 (1960). See also Neeley v.
Henkel, supra; Wilson v. Girard, 254 U.S. 524 (1956)
(where in both cases minimum standards of fairness
were provided in the foreign tribunal); United States v.
Salzmann, 548 F.2d 395.
In the instant petition, the court substantially
prejudiced petitioner by failing to inquire into the
treatment that awaits him in Mexico. In so doing it
failed to consider that Mexican prison guards and police
routinely engage in physical abuse of persons detained
and imprisoned. Prisoners are also subject to brutal
23
gangs of prisoners who extort great sums of money
from U.S. convicts in return for the necessities of life
and inflict brutal beatings on the unfortunate individual
who is unable or unwilling to pay ransom. See Rosado
v. Civiletti, supra; Velez v. Nelson, 475 F. Supp. 865 (D.
Conn. 1979). It was because of these conditions that the
U.S. entered into a treaty with Mexico on the Transfer
of Prisoners, 28 U.S.T. 7399, T.I.A.S. No. 8718, and
implementing legislation 18 U.S.C. §4108 (Supp. I, 1977).
See Hearings Before the Committee on Foreign Relations,
United States Senate, lst Sess. 95th Cong., June 15-16,
1977); Hearings Before the Sub-Committee on
Penitentiaries and Corrections of the Committee on
the Judiciary, United States Senate, lst Sess. 95th
Cong., July 13-14, 1977; Hearings on International Law
of the Committee on the Judiciary, House of
Representatives, lst Sess. 95th Cong., September 16,
October 6, 1977. See also Bassiouni, “Perspectives on
the Transfer of Prisoners Between the United States
and Mexico and the United States and Canada” 11
Vand. J. Trans. L. 249 (1978); Abramovsky and Eagle,
“A Critical Evaluation of the Mexican-American Transfer
of Penal Sanctions Treaty” 64 Jowa L. Rev. 274 (1979)
and Vagts, “A Reply to a Critical Evaluation of the
Mexican-American Transfer of Penal Sanctions Treaty”
64 Jowa L. Rev. 325 (1979); Abramovsky, “A Critical
Evaluation of the American Transfer of Penal Sanctions
Policy” 25 Wisc. L. Rev. 25 (1980).
If petitioner should happen to avoid such treatment
in Mexico, there is no obstacle imposed by the United
States-Mexico Extradition Treaty, supra, to his
subsequent extradition to Cuba where he would at
least be subjected to political persecution. The likelihood
of such occurrence is high in view of the fact that
Mexico and Cuba maintain amicable diplomatic relations.
24
+
Moreover, the totalitarian nature of the Cuban regime
necessitates the Court's consideration of whether the
political offense exception should be applied with greater
liberality where a prospective requesting state uses
another foreign state as its agent to achieve otherwise
impermissible ends, particularly where the subject-
individual opposes that regime in the cause of freedom.
See Ex parte Kolcyznski [1955] 1 All Eng. Rep. 31.
Finally, the United States is obligated under
international law not to return a person to a state
where he could be the subject of discrimination or
persecution. Petitioner's likely treatment by Mexican
authorities and in the prisons, which approach medieval
conceptions of justice, and his possible return to Cuba
are clearly valid considerations which the Courts below
failed to consider. In addition to the obligations of the
Universal Declaration on Human Rights, supra, the
International Covenant on Civil and Political Rights,
supra, and the Inter-American Convention on Human
Rights, supra, the United States has ratified the 1967
Protocol Relating to the Status of Refugees, 19 U.S.T.
6223, T.I.A.S. No. 6577 (1968) (which Protocol incorporates
by reference provisions of the 1951 Refugee Convention)
wherein Article 33 specifically prohibits the expulsion
or return of a refugee whose life or freedom would be
threatened inter alia “ on account of his . . . political
opinion.” See also Sindona v. Grant, supra at 174. the
U.S. further enacted in 1980 the Refugee Act Pub. L.
96-212, Title II §201(a), 94 Stat. 102, amending 8 U.S.C.
Chapter 12 to support its treaty obligations. Thus
international obligations exist which preclude the return
of a person who could be the subject of treatment
deemed non-humanitarian, and that is also implicit in
the treaty of extradition in question.
25
The Fifth Circuit's failure to make judicial inquiry
into these questions and in not applying the law concerning
the potential inhumane treatment of petitioner requires
that the case be remanded for reconsideration of the
factual basis of this contention.
26
CONCLUSION
For these reasons, a writ of certiorari should issue
to review the judgment and opinion vf the United
States Court of Appeals for the Fifth Circuit.
Respectfully submitted,
JEFFREY S. WEINER, Esq.
and
M. CHERIFF BASSIOUNI, Esq.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy
of the foregoing was this day of December, 1980,
forwarded to MURRAY R. STEIN, ESQUIRE,
Department of Justice, Washington, D.C. 20520.
Respectfully submitted,
WEINER, ROBBINS,
TUNKEY & ROSS, P.A.
Rivergate Plaza, Suite 700
444 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 373-0110
BY:
JEFFREY S. WEINER
27
Appendix
Gaspar Eugenio Jimenez ESCOBEDO,
Petitioner-Appellant,
v.
UNITED STATES of America,
Respondent-Appellee.
Gustavo CASTILLO,
Petitioner-Appellant,
v.
Donald D. FORSHT, U. S. Marshal,
Respondent-Appellee.
Nos. 79—1480, 79—1490.
United States Court of Appeals,
Fifth Circuit.
Aug. 14, 1980.
United States citizens appealed from orders of the
United States District Court for the Southern District of
Florida, C. Clyde Atkins, J., denying their requests for
habeas corpus relief by which they sought to block their
extradition to Mexico for prosecution on charges of
murder, attempted murder, and attempted kidnapping.
The Court of Appeals, R. Lanier Anderson, III, Circuit
Judge, held that: (1) evidence established probable
App. 1
cause to believe that the United States citizens
committed the crimes charged; (2) although Mexican
extradition documents establishing probable cause may
not have constituted depositions in the strictly legal
sense, they were sufficient to satisfy provision of United
States — Mexico Extradition Treaty requiring
depositions to accompany warrants for arrest; (3)
United States citizens were not entitled to haven under
provision of the Treaty barring extradition for crimes of
a purely political character; (4) discretion given
executive to extradite United States nationals did not
violate due process; and (5) question whether United
States should refuse to extradite its citizens because of
Mexico’s failure to extradite its nationals was one for the
Executive Branch, not the courts, to decide.
Affirmed.
Appeals from the United States District Court for
the Southern District of Florida.
Before, MORGAN, ANDERSON and RANDALL,
Circuit Judges.
R. LANIER ANDERSON, III, Circuit Judge:
This is an appeal from orders denying requests for
habeas corpus relief in international extradition
proceedings. On December 8, 1977, the Government of
Mexico, pursuant to the United States-Mexico
App. 2
Extradition Treaty of 1899!, requested extradition of
two United States citizens, Gaspar Eugenio Jimenez
Escobedo and Gustavo Castillo (petitioners), for
prosecution on charges of murder, attempted murder,
and attempted kidnapping. In response to this request,
petitioners were arrested in the Southern District of
Florida. After holding an evidentiary hearing under 18
'Treaty of Extradition Between the United States of America
and the United Mexican States, Feb. 22, 1899, 31 Stat. 1818, T.S.
242 [referred to herein as Extradition Treaty].A new extradition
treaty which entered into force on January 25, 1980, has superceded
the 1899 Treaty. 17 Int’l. Legal Materials 1068 (1978). However,
Art. 22(2) of the 1980 Treaty provides that, “Requests for
extradition that are under process on the date of the entry into force
of this Treaty, shall be resolved in accordance with the provisions of
the Treaty of 22 Feb. 1899 [as supplemented].” Therefore, this
extradition request, which has been in process since 1977, is
governed by the 1899 Treaty.
App. 3
U.S.C. §3184, a United States Magistrate, on May 31,
1978, issued a Certificate of Extraditability and Order of
Commitment for both petitioners. The magistrate
found, inter alia, that petitioners are the individuals
sought by Mexico, that the crimes for which petitioners
are sought are extraditable offenses under the Treaty,
and that there is probable cause to believe that
petitioners committed those crimes in Mexico.
On June 2 and June 21, 1978, Escobedo and
Castillo, respectively, filed the instant petitions for writs
218 U.S.C. §3184 provides:
§3184. Fugitives from foreign country to United States
Whenever there is a treaty or convention for extradition
between the United States and any foreign government,
any justice or judge of the United States or any magistrate
authorized so to do by a court of the United States, or any
judge of a court of record of general jurisdiction of any
State, may, upon complaint made under oath, charging
any person found within his jurisdiction, with having
committed within the jurisdiction of any such foreign
government any of the crimes provided for by such treaty
or convention, issue his warrant for the apprehension of
the person so charged, that he may be brought before such
justice, judge, or magistrate, to the end that the evidence
of criminality may be heard and considered. If, on such
hearing, he deems the evidence sufficient to sustain the
charge under the provisions of the proper treaty or
convention, he shall certify the same, together with a copy
of all the testimony taken before him, to the Secretary of
State, that a warrant may issue upon the requisition of the
proper authorities of such foreign government, for the
surrender of such person, according to the stipulations of
the treaty or convention; and he shall issue his warrant for
the commitment of the person so charged to the proper
jail, there to remain until such surrender shall be made.
App. 4
.
of habeas corpus, seeking to block their extradition. By
orders entered December 26, 1978, the Southern District
of Florida denied the petitions. This appeal followed.
Petitioners urge that the district court erred in not
granting the writ because: (1) the evidence offered at the
extradition hearing did not establish probable cause to
believe that they committed the crimes charged; (2) the
offenses charged by Mexico are political in character;
(3) petitioners, as United States nationals, are not
subject to extradition; and (4) certain humanitarian
considerations bar extradition.?
SCOPE OF REVIEW
[1] The scope of habeas corpus review of a
magistrate’s extradition order is quite narrow. Such
review is limited to determining ‘‘whether the
magistrate had jurisdiction, whether the offense charged
is within the treaty and, by a somewhat liberal
extension, whether there was any evidence warranting
the finding that there was reasonable ground to believe
the accused guilty.” Fernandez v. Phillips, 268 U.S. 311,
45 S.Ct. 541, 69 L.Ed. 970 ‘1925); Gusikoff v. United
States, 620 F.2d. 459, 461 (5th Cir. 1980); Brauch uv.
Raiche, 618 F.2d. 843, 847 (1st Cir. 1980); Garcia-
Guillern v. United States, 450 F.2d. 1189, 1191 (5th Cir.
1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31
L.Ed.2d. 455 (1972). The writ is not a means for
‘Using at times somewhat different arguments, both
petitioners, in separate briefs, urge the first three grounds as bars to
extradition. Only Escobedo raises the fourth ground. In reviewing
each argument raised in support of the first three grounds, we shall
not always specify which petitioner is the author of the argument.
App. 5
rehearing the magistrate’s findings. Fernandez uv.
Phillips, 268 U.S. at 312, 45 S.Ct. at 542; Garcia-
Guillern v. United States, 450 F.2d. at 1191-92.
PROBABLE CAUSE
As stated, petitioners are charged by the Mexican
government with murder, attempted murder and
attempted kidnapping. These charges arise out of an
alleged attempt by petitioners, along with Orestes Ruiz
Hernandez‘ to kidnap the Cuban Consul in Merida,
Mexico, Daniel Ferrer Fernandez, on July 23, 1976.
During the attempt, an associate of the Consul,
Artagnan Diaz y Diaz, was shot and killed. Although
bullets were allegedly fired at the Consul, he escaped
without injury. Escobedo was arrested at the Mexico
City airport the day after the incident. He subsequently
escaped from a Mexican jail and fled to the United
States. Castillo was never apprehended by Mexican
authorities.
[2] In reviewing the existence of probable cause to
sustain the charges against petitioners “or, in other
words, the existence of a reasonable ground to believe
the accused guilty,” our function “is to determine
whether there is any competent evidence tending to
show probable cause. The weight and sufficiency of that
evidence is for the determination of the committing
court.’ Garcia-Guillern v. United States, 450 F.2d. at
‘Hernandez, presently incarcerated in Mexico, is not a party to
this proceeding.
App. 6
1192; Gusikoff v. United States, supra, 620 F.2d. at 462.°
In this case, the evidence introduced at the extradition
hearing to prove probable cause consisted of various
documents submitted by Mexico in support of its
extradition request.®
[3-5] With respect to Escobedo, the documents
show that explosives and firearms were found in his
luggage at the time of his arrest.’ A ballistics report
contained in the Extradition Documents concludes that
the bullet that killed Diaz y Diaz was fired from one of
these firearms.® With respect to Castillo, the documents
‘As we said in Gusikoff:
Hearings held pursuant to Section 3184 are in the nature of
a preliminary hearing (Citation omitted.) The foreign
country does not have to show actual guilt, only probable
cause that the fugitive is guilty. (Citations omitted.) The
magistrate does not inquire into the guilt or innocence of
the accused; he looks only to see if there is evidence
sufficient to show reasonable ground to believe the accused
guilty. (Citation omitted.) The magistrate also determines
whether the offense charged is extraditable and whether
the person brought before him is the one accused of crime.
620 F.2d. at 462, quoting from Sayne v. Shipley, 418 F.2d. 679, 685
(5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26
L.Ed.2d. 61 (1970).
‘An English translation of these documents was also
introduced.
"English Translation of Mexican Extradition Documents
[hereinafter referred to as Extradition Documents or Documents] at
35-36; 55-60.
§Jd. at 71-73.
App. 7
contain a third party’s report of a deposition given by
the Cuban Consul, Fernandez, to a Mexican official on
July 24, 1976.9 The report states that during the
deposition, the Consul was shown a picture of Castillo,
and that he “recognized him as one of the persons who
performed the attack.’!° At this deposition, and in a
statement given to authorities on the day of the attack",
the Consul is also reported as saying that one of the
attackers approached him with a gun, that he thought
bullets were fired at him during the incident, and that
the attackers attempted to kidnap him. Furthermore,
the documents indicate that Castillo’s passport was
found in Escobedo’s luggage at the time of Escobedo’s
arrest.'? We hold that this evidence establishes probable
Id. at 28-30.
“Castillo contends that this report cannot be used to establish
probable cause because it constitutes compound hearsay and is
untrustworthy. Hearsay, however, is permitted in extradition
proceedings. See, e.g., Bingham v. Bradley, 241 U.S. 511, 517, 36
S.Ct. 634, 637, 60 L.Ed. 1136 (1916); Shapiro v. Ferrandina, 478
F.2d 894, 902 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204,
38 L.Ed.2d 133 (1973); Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir.
1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61
(1970). Further, the credibility of the reported identification is a
matter committed to the magistrate and is not reviewable on
habeas corpus. See Garcia-Guillern v. United States, 450 F.2d at
191-92; Merino v. United States Marshal, 326 F.2d 5, 12 (9th Cir.
1963), cert, denied, 377 U.S. 997, 84 S.Ct. 1922, 12 L.Ed.2d 1046
(1964).
‘Extradition Documents at 9.
27d. at 56.
App. 8
cause to believe that both petitioners committed the
crimes charged.
[6, 7] Petitioners contend, however, that the
Mexican Extradition Documents should not have been
admitted at their extradition hearing; they argue that
these documents would have been inadmissible for the
purpose of proving probable cause in a Florida court.
This argument is without merit. State law does not
control the reception of evidence at extradition hearings.
Collins v. Loisel, 259 U.S. 309, 317, 42 S.Ct. 469, 472, 66
L.Ed. 956 (1922); Shapiro v. Ferrandina, 478 F.2d at
901-02; Sayne v. Shipley, 418 F.2d at 685. The
admissibility of the Mexican Extradition Documents is
governed by 18 U.S.C. §3190, which provides:
§3190. Evidence on hearing
Depositions, warrants, or other papers or copies
thereof offered in evidence upon the hearing of
any extradition case shall be received and
admitted as evidence on such hearing for all
the purposes of such hearing if they shall be
properly and legally authenticated so as to
entitle them to be received for similar purposes
by the tribunals of the foreign country from
''The Extradition Documents include confessions made to
Mexican authorities by Escobedo and Orestes Ruiz Hernandez.
Petitioners contend that these confessions cannot be used for the
purpose of establishing probable cause because they were obtained
by means of torture. We do not reach this contention because we
conclude that the evidence independent of the confessions,
discussed above, establishes probable cause. Cf. Magisano v.
Locke, 545 F.2d 1228, 1230 (9th Cir. 1976) (evidence not obtained
from allegedly illegal wiretap sufficient to show probable cause for
extradition).
App. 9
which the accused party shall have escaped,
and the certificate of the principal diplomatic
or consular officer of the United States resident
in such foreign country shall be proof that the
same, so offered, are authenticated in the
manner required.
Since the Mexican Extradition Documents were
properly certified by the United States Ambassador to
Mexico, they were authenticated, and admissible under
section 3190. See, e.g., Shapiro v. Ferrandina, 478 F.2d
at 901-02; Jimenez v. Aristeguieta, 311 F.2d 547, 562
(5th Cir. 1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1302,
10 L.Ed.2d 415 (1963).
[8] Petitioners next contend that the English
translation of the Mexican Extradition Documents
contains various inaccuracies and therefore should not
be relied upon in assessing probable cause. We reject
this argument. After receiving the testimony of an
interpreter who appeared on petitioners’ behalf, Supp.
Record 129-139, the magistrate found that petitioners
had failed to impeach the accuracy of the translation.
We agree with this finding. In any event, even if
petitioners’ interpretation of the Documents were
accepted, the Documents still support the presence of
probable cause.
[9] Finally, petitioners argue that the evidence
used to establish probable cause did not satisfy Article
VIII of the Extradition Treaty. Article VIII states:
When. . . the fugitives shall have been merely
charged with a crime or offense, [an] .. .
authenticated and attested copy of the warrant
App. 10
for his arrest in the country where the crime or
offense is charged to have been committed, and
of the depositions upon which such warrant
may have been issued, must accompany the
requisition as aforesaid.
(Emphasis added). Petitioners contend that Article VIII
was breached because none of the documents submitted
by Mexico constitute “depositions” in the strictly legal
sense, namely:
The testimony of a witness taken upon
interrogatories, not in open court, but in
pursuance of a commission to take testimony
issued by a court, or under a general law on the
subject, and reduced to writing and duly
authenticated, and intended to be used upon
the trial of an action in court.
Black’s Law Dictionary (4th ed. 1968). This argument is
unpersuasive. The purpose of Article VIII is to provide
the asylum country both with proof of the charges
brought by the requesting country and with the evidence
supporting those charges. The extradition papers
forwarded by Mexico fulfill this dual purpose. They
include copies of the warrants for petitioners’ arrests as
well as documents establishing probable cause to
believe that the crimes charged were committed."
While these documents may not constitute depositions
''Several of these documents are reports of depositions made
by others.
App. 11
in the strictly legal sense'®, we hold thet they do satisfy
Article VIII. To bar extradition, despiie the existence of
properly authenticated documents establishing
probable cause, because of a narrow and technical
definition of the term “deposition” would defeat the
intent of the Treaty parties. “It is a familiar rule that
the obligations of treaties should be liberally construed
so as to give effect to the apparent intention of the
parties.”’ Valentine v. United States ex rel. Neidecker,
299 U.S. 5, 10, 57 S.Ct. 100, 81 L.Ed. 5 (1936).'6
''We note that the term “deposition,” in the generic sense,
means simply “an affidavit, an oath, a statement under oath,”
Ballentine Law Dictionary, (34 ed. 1969); accord, 26A C.J.S.
Depositions §1 at 287 (1956).
‘The comments of J. G. Hawley are appropriate:
While in extradition cases the substance of the matter
ought to be carefully examined before a man is taken away
from the jurisdiction whose protection he is entitled to
invoke, there are many reasons why strict technical
accuracy is not to be required. The papers are prepared by
persons who are educated under foreign codes of law and
accustomed to different methods of procedure from those
in use in the United States. If a merely technical objection
is unnecessarily sustained, it must usually result in a
considerable delay if not in a failure of the purposes of
extradition altogether. Therefore, in these cases, American
magistrates, while for the most part careful not to allow
extradition in cases where they were not sufficiently
satisfied as to the merits, have been solicitous to prevent a
failure of justice by giving effect to merely technical
objections.
J. G. Hawley, Law and Practice of International Extradition, 41-42
(1893). '
App. 12
7%
POLITICAL OFFENSE EXCEPTION
Article III of the Extradition Treaty bars
extradition, ‘‘When the crime or offense charged shall be
of a purely political character.” Petitioners argue that
Mexico’s charges, on their face, bring this case within
Article III. Mexico charges that petitioners attempted to
kidnap the Cuban Consul for the purpose of ransoming
him for political prisoners being held in Cuba. These
charges trigger the political offense exception because,
say petitioners, a political offense includes ‘‘a common
crime ... committed by an ideologically motivated
offender . . . where the common crime is intricately
linked to the ideology, motive and intent of the alleged
offender.’’'”7 We disagree.
[10, 11] This circuit defines a political offense
under extradition treaties as an offense committed in
the course of and incidental to a violent political
disturbance, such as war, revolution and rebellion.
Garcia-Guillern v. United States, 450 F.2d. at 1192;
Jimenez v. Aristeguieta, 311 F.2d. at 560.'* An offense is
not of a political character simply because it was
politically motivated. In this case, petitioners do not
contend, and the evidence offered at the extradition
("Brief for Petitioner Castillo at 35. Escobedo also argues that
the alleged offenses were motivated by ideology rather than ill will
toward the victims or a desire for monetary gain. Brief for Petitioner
Escobedo at 20-21.
‘This definition is derived from the English case of In Re
Castioni, [1891] 1 Q.B. 149 and is followed by other American
courts, see, e.g., Sindona v. Grant, 619 F.2d. 167 at 173 (2d Cir.
1980); In re Ezeta, 62 F. 972, 977-1002 (N.D. Cal.1894). See
generally I. A. Shearer, Extradition in International Law (1971).
App. 13
hearing does not show, that the charges arising out of
the alleged attempted kidnapping were committed in
the course of and incidental to a violent political
disturbance. Therefore, petitioners are not entitled to
haven under Article III of the Treaty.
NATIONALITY
Article IV of the Extradition Treaty, on its face,
invests the Executive Branch of each treaty party with
discretion to surrender its own nationals. It states:
Neither of the contracting parties shall be
bound to deliver up its own citizens under the
stipulations of this convention, but the
executive authority of each shall have the
power to deliver them up, if, in its discretion, it
be deemed proper to do so.
Despite this language, petitioners contend that as
United States citizens, they are not subject to
extradition to Mexico. Their argument is three-fold.
First, petitioners argue that the discretion given the
Executive under Article IV violates due process because
no standards are provided to guide the exercise of this
discretion. We reject this argument. Contrary to
petitioners’ suggestion, a United States citizen may not
be whisked away to a foreign country for trial by
App. 14
Executive whim. Under 18 U.S.C. §31861°, the Secretary
of State may not surrender any person to a foreign
government unless the person has been found
extraditable by a magistrate at a hearing held under 18
U.S.C. §3184. Executive discretion arises only if the
magistrate determines that there is ‘evidence sufficient
to sustain the charge under the provisions of the proper
treaty.”’ Id. These statutory provisions safeguard the
fugitive’s due process rights. See Peroff v. Hylton, 563
F.2d. 1099, 1102-03 (4th Cir. 1977); Sayne v. Shipley,
418 F.2d. at 686.
[12, 13] Assuming that the magistrate’s decision
is in favor of extradition, the Executive’s discretionary
determination to extradite the fugitive2?? — even one
‘Section 3186 provides:
§3186. Secretary of State to surrender fugitive
The Secretary of State may order the person committed
under sections 3184 or 3185 of this title [18 USCS §3184 or
3185] to be delivered to any authorized agent of such
foreign government, to be tried for the offense of which
charged.
Such agent may hold such person in custody, and take him
to the territory of such foreign government, pursuant to
such treaty.
A person so accused who escapes may be retaken in the
same manner as any person accused of any offense.
"The Secretary of State always has discretion to refuse to
extradite, even if the magistrate under 18 U.S.C. §3184 concludes
that the fugitive is extraditable. See 18 U.S.C. §3186 (the Secretary
of State ‘‘may” extradite the person committed under section
3184); Sindona v. Grant, supra, 619 F.2d at 176; Wacker v. Bisson,
348 F.2d 602, 606 (5th Cir. 1965); M.M. Whiteman, 6 Digest of
International Law 1046 (1968) [hereinafter referred to as
Whiteman].
App. 15
who is a United States national — is not generally
subject to judicial review.2! The ultimate decision to
extradite is a matter within the exclusive prerogative of
the Executive in the exercise of its powers to conduct
foreign affairs. Sindona v. Grant, supra; Peroff v.
Hylton, 563 F.2d at 1102-03; Shapiro v. Secretary of
State, 499 F.2d 527, 531 (D.C. Cir. 1974), aff’d. sub nom.
Commissioner of Internal Revenue Service v. Shapiro,
424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976);
Wacker v. Bisson, 348 F.2d 602, 606 (5th Cir. 1965)
(“Review by habeas corpus . . . tests only the legality
of the extradition proceedings; the question of the
wisdom of extradition remains for the Executive Branch
to decide.’’); M.C. Bassiouni, International Extradition
and World Public Order, 29-34 (1974). This principle
was applied in Peroff v. Hylton, supra, a case involving
the United Statés-Sweden Extradition Treaty. Article
VII of that treaty is substantially identical to Article IV
of the treaty with Mexico. The petitioner in Peroff, a
United States citizen, characterized the Executive’s
exercise of discretion to extradite nationals under
Article VII as an “administrative determination,” and
claimed that he was entitled, as a matter of due process,
to a hearing before the Secretary of State on the
propriety of his extradition.?? Holding that it would be
improper for a court to impose such a hearing
requirement, the Fourth Circuit stated:
*\Petitioners do not contend that the Secretary of State uses
constitutionally impermissible criteria in exercising this discretion.
“This hearing would have been in addition to the judicial
hearing provided under 18 U.S.C. $3184.
App. 16
The need for flexibility in the exercise of
Executive discretion is heightened in
international extradition proceedings which
necessarily implicate the foreign policy
interests of the United States. Thus, while
Congress has provided that extraditability
shall be determined in the first instance by a
judge or magistrate, 18 U.S.C. §3184, the
ultimate decision to extradite is ‘ordinarily a
matter within the exclusive purview of the
Executive.’
563 F.2d at 1102. The court concluded that the
requirements of procedural due process were satisfied by
the hearing provided under 18 U.S.C. §3184 and by
habeas corpus review. Id. at 1102-03.
[14] The same sensitivity to the Executive’s role
in foreign affairs, which prompted the Peroff court’s
refusal to prescribe the procedures by which the
Executive exercises its discretion over the extradition of
nationals, causes us to reject petitioners’ argument that
this discretion should be confined within specific
standards.
[15] Second, contending that a treaty may be
modified subsequent to its entry into force by the
practice of the parties,2’ petitioners claim that ever
since the first extradition treaty between the United
States and Mexico was concluded in 1861, both
governments have consistently refused to surrender
“Without deciding the point, we shall assume arguendo that a
treaty may be modified by the subsequent practice of the parties.
See, generally, G. Schwarzenberger, A Manual of International
Law, 167-68 (5th ed. 1967); 14 Whiteman at 399-406.
App. 17
their own nationals. Because of this practice, petitioners
urge that we hold that Article IV’s grant of Executive
discretion to deliver up nationals has been repealed. We
decline this invitation. Most of the incidents cited by
petitioners as evidence of the United States’ 24 and
Mexico’s practice of not surrendering nationals occurred
prior to the Supreme Court’s 1936 decision in Valentine
v. United States ex rel. Neidecker, 299 U.S. 5, 57 S.Ct.
100, 81 L.Ed. 5. Yet, in Valentine, the court expressly
stated that under Article IV, the Secretary of State had
discretionary power to surrender United States
citizens.2° Id. at 12-17. Indeed, the Court suggested that
one of the very reasons the 1899 Treaty was written was
4We note in passing that petitioners’ assertion that the United
States has consistently refused to extradite its nationals under
Article IV is factually flawed. The United States has surrendered its
nationals under that Article. See 6 Whitema:: at 866. As stated in a
letter from the American Ambassador at Mexico City to a Mexican
official:
‘Consistent with the long-standing position of the
Government of the United States of America . . . the
United States has, in addition to the three United States
citizens previously mentioned, granted the extradition of
United States citizens [to Mexico] over a period of many
years [citing several instances].’
Letter from U.S. Ambassador to Mexico, Hill, to Acting Minister of
Foreign Relations of Mexico, Gorostiza (Aug. 22, 1960), quoted in 6
Whiteman at 879.
2*The specific question in Valentine was whether the 1909
Extradition Treaty with France gave the President power to
surrender United States citizens. Holding in the negative, the Court
contrasted the French treaty, which did not affirmatively grant
such power, with Article IV of the Mexican treaty. 299 U.S. at 12-
17, 57 S.Ct. at 104-106.
App. 18
to give the Executive this power; the 1861 Treaty which
it replaced had been interpreted as not giving the
Executive authority to extradite United States citizens.
Id.
Furthermore, the argument that the treaty parties,
through their conduct, have expressed an intention to
remove the Executive discretion clause from Article IV
is substantially undermined by the terms of the recently
executed extradition treaty between the United States
and Mexico. 17 Int’l. Legal Materials 1068 (1978).
Article 9 of the new treaty provides:
1. Neither Contracting Party shall be bound to
deliver up its own nationals, but the executive
authority of the requested Party shall, if not
prevented by the laws of that Party, have the power
to deliver them up if, in its discretion, it be deemed
proper to do so.
2. If extradition is not granted pursuant to
paragraph 1 of this Article, the requested Party
shall submit the case to its competent authorities
for the purpose of prosecution, provided that Party
has jurisdiction over the offense.
While the new treaty does not control this extradition
proceeding, see note 1, supra, the fact that it invests the
Executive with the same discretion as was given under
Article IV of the old treaty is evidence that the parties
never intended to eliminate this discretion.
[16] Finally, petitioners argue that under due
process and equal protection principles, they should not
be subject to extradition because Mexico does not
App. 19
reciprocate by extraditing its nationals. This argument
was rejected by the Supreme Court in Charlton v.
Kelley, 229 U.S. 447, 469-76, 33 S.Ct. 945, 952-955, 57
L.Ed. 1274 (1913), and more recently by the Fourth
Circuit in Peroff v. Hylton, 563 F.2d 1099, 1102 (4th Cir.
1977). We do the same. The question whether the
United States should refuse to extradite its citizens
because of Mexico’s failure to reciprocate” is one for the
Executive Branch, note the Courts, to decide. ?’
The justification often given for the differing practices of the
United States and Mexico with respect to extradition of nationals is
that the two countries have different concepts of criminal
jurisdiction. Mexico, which generally refuses to extradite nationals,
has the power, under its laws, to prosecute its citizens for offenses
committed abroad. By contrast, the United States, which
frequently surrenders its citizens, is generally unable, under its
laws, to prosecute its citizens for crimes committed outside its
territorial jurisdiction. 6 Whiteman at 876, 878-84. See also I.A.
Shearer, Extradition in International Law, 115 (1971).
27In Charlton, the Court stated:
The executive department having thus elected to waive
any right to free itself from the obligation to deliver up its
own citizens, it is the plain duty of this court to recognize
the obligation to surrender the appellant as one imposed
by the treaty as the supreme law of the land and as
affording authority for the warrant of extradition.
229 U.S. at 476, 33 S.Ct. at___. Similarly, in Peroff, the Court
ruled that,
Even if the claimed lack of reciprocity were construed to
be a violation of treaty obligations, it would be for the
Executive alone to determine whether to waive such
violations or to renounce the extradition agreement.
563 F.2d at 1102.
App. 20
HUMANITARIAN CONSIDERATIONS
[17] Alleging that he may be tortured or killed if
surrendered to Mexico, Escobedo asks that we bar his
extradition on humanitarian grounds. However, “the
degree of risk to [Escobedo’s] life from extradition is an
issue that properly falls within the exclusive purview of
the executive branch. See Peroff v. Hylton, 542 F.2d
1247, 1249 (4th Cir. 1976), cert. denied, 429 U.S. 1062
[97 S.Ct. 787, 50 L.Ed.2d 778] (1977) . . .”’ Sindona v.
Grant, supra, 619 F.2d at 174.
The district court’s order denying the writ of habeas
corpus is
AFFIRMED.
App. 21
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
October Term, 19
No. 79-1490
D.C. Docket No. 78-2607-Civ-CA
GUSTAVO CASTILLO,
Petitioner-A ppellant,
versus
DONALD D. FORSHT, U.S. Marshal,
Respondent-A ppellee.
Appeal from the United States District Court for the
Southern District of Florida
Before MORGAN, ANDERSON and RANDALL,
Circuit Judges.
JUDGMENT
This cause came on to be heard on the transcript
of the record from the United States District Court for
the Southern District of Florida, and was argued by
counsel;
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the order of
the District Court appealed from, in this cause be, and
the same is hereby, affirmed.
August 14, 1980
Issued as Mandate:
App. 22
[FILED SEP 29 1980]
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 79-1490
GUSTAVO CASTILLO,
Petitioner-A ppellant,
VveTsus
DONALD D. FORSHT, U.S. Marshal,
Respondent-A ppellee.
Appeal from the United States District Court for the
Southern District of Florida
ON PETITION FOR REHEARING
(September 29, 1980)
Before MORGAN, ANDERSON and RANDALL,
Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for rehearing
filed in the above entitled and numbered cause be and
the same is hereby DENIED.
ENTERED FOR THE COURT:
[Illegible]
United States Circuit Judge
App. 23
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