Petition for Writ of Certiorari — Verdugo-Urquidez v. United States
Supreme Court brief1995
Ask Donna
What actually matters in this document.
Text
1) O41 O71 DEC 219%
QEFIQE OF JHE SL ana
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
NO.
RENE MARTIN VERDUGO-URQUIDEZ, PETITIONER,
VS.
UNITED STATES OF AMERICA
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK Q. HALL, Esq.
Goldberg & Hail
2870 Fourth Avenue, #100
San Diego, California 92103
(619) 297-1111
Attorney for Respondent
RENE MARTIN VERDUGO-URQUIDEZ
SS A ae a
QUESTIONS PRESENTED
l. Whether a Mexican citizen provisionally
arrested in Mexico pursuant to the terms of the United
States/Mexico Extradition Treaty and surrendered to United
States Marshals on narcotics charges may assert the Principle
of Specialty contained within the treaty to preclude his
prosecution on subsequently filed and different charges, in
light of Mexico’s diplomatic protest.
3 Whether due process affords a resident alien
an opportunity to be heard in a meaningful manner to
determine through an evidentiary hearing whether he was
"provisionally arrested" within the meaning of United
States/Mexico Extradition Treaty.
3. Whether out-of court statements made by an
unavailable codefendant identified as the interrogator of
Camarena, which statements were made during his custodial
interrogation by United States officials in Mexico confirming
that the interrogator was present but that Petitioner was not
present during the interrogation are sufficiently reliable to
justify their admission under Federal Rule of Evidence 804
or at the least mandated a continuance to obtain the late
released information by way of deposition.
4. Whether defense counsel’s remarks made
following an uninvited, inflammatory, closing argument by
the prosecutor highlighting the heroics of the victim, and
passionately inciting the jury to ignore evidence may be used
to establish a lack of prejudice and place "the comments in
context" when the only curative instruction to the jury was
that arguments are not evidence.
3 Whether, given the minimal evidence linking
Petitioner to the offenses charged, namely his presence at the
scene of the crime, the jury should have been instructed that
Petitioner’s theory of defense instruction that his presence at
the scene of the interrogation of Camarena for a purpose
other than to participate in the interrogation of Camarena
mandated not guilty verdicts.
—pieils aaa nalaaesammaaaamtiaae,.
lil
TABLE OF CONTENTS
Opinions Below |
Jurisdiction 2
Constitutional Provision Involved 2-3
Treaty Involved 3
Statement 3
Reasons for Granting the Petition 22
Conclusion 53
IV
TABLE OF AUTHORITIES
Cases
Air France v. Sak
470 U.S. 392 (1985)
The Amiable Isabella
6 Wheat | (1921)
nreA n
635 F.2d 1237 (4th Cir. 1980)
Berger v. United States
295 U.S. 78 (1935)
Booth v. Maryland
482 U.S. 1496 (1987)
ltagirone v. Grant
629 F.2d 739 (2d Cir. 1980)
Charlton v. Kelly
229 U.S. 447 (1913)
Donnelly v. DeChristoforo
416 U.S. 637 (1974)
Eian v, Wilkes
641 F.2d 504 (7th Cir.)
cert. denied, 454 U.S. 894 (1981)
Factor v. Jubenheimer
290 U.S. 276 (1933)
24-25
25
28
4d
45
27
27
a4
35-36
25-26
:
lorida v. Royer
460 U.S. 491 (1983) 37
Fuentes v. Shevin
407 U.S. 67 (1972) 35
rin v. Shine
187 U.S. 1891 (1902) 27
In re Kaine
55 U.S. 14 How. 103 (1952) 36
Koskotas v. Roche
931 F.2d 169 (1st Cir. 1991) 27
Matter of Extradition of Russell
805 F.2d 1215 (Sth Clr. 1986) 28
Maximov v. United States
373 U.S. 49 (1963) 25
Mitchell v. W.T. Grant Co.
416 U.S. 600 (1974) 35
Mullane v ntral Hanover Bank and Tr 0.
339 U.S. 306 (1950) 34
rth rgia Finishing Inc. v. Dich
419 U.S. 601 (1975) 35
Petiti £ Gei
627 F.2d 745 (Sth Cir. 1980) 28
Sehaaiid + Uae
a |
864 F.2d 509 (7th Cir. 1988) 28
Sami v. Uni
617 F.2d 755 (D.C. Cir. 1979) 29
Shiadach v. Family Fin C .
395 U.S. 337 (1969) 34
Pie ise
nh en ee a ted S District C
482 U.S. 522 (1987) 24
South Carolina v, Gathers
490 U.S. 805 (1989) 45
rican v. Av
457 U.S. 176 (1982) 25
i v. Al -
535 F.2d 1362 (2d Cir. 1976) 48
__ U.S. __ 112 S.Ct. 2188 (1992) passim
United S < Biebiel
690 F.2d 1117 (4th Cir. 1982) 38
United S v. DiT
817 F.2d 211 (2d Cir. 1987) 27-28
United States v. Duncan
850 F.2d 1104 (6th Cir. 1988) 48
United States v. Lewis
592 F.2d 1282 (Sth Cir. 1979) 48
So ah ln a ai infil .
Vil
United States v. Lopez
777 F.2d 543 (10th Cir. 1985)
V -ALV
970 F.2d 583 (9th Cir. 1982)
United States v. Pedroza
750 F.2d 187 (2d Cir. 1984)
United States v. Rauscher
119 U.S. 407 (1886)
United S v. Riv
924 F.2d 1289 (3d Cir. 1991)
United States v. Scott
789 F.2d 795 (9th Cir. 1986)
1 V iri
813 F.2d 146 (8th Cir. 1987)
United States v. Valot
625 F.2d 308 (9th Cir. 1980)
494 U.S. 259 (1990
United States v. Wiebe
733 F.2d 549 (8th Cir 1984)
United States v. Young
470 U.S. 1 (1985)
Valencia v. Limbs
655 F.2d 195 (9th Cir. 1981)
19
48
passim
28-29
42
29
nstitution tes, Rules, Mi | us
Fifth Amendment
Federal Rule of Evidence 804(b)(3)
18 U.S.C. Section 1952
28 U.S.C. Section 1254(1)
man In ional
Extradition Proceedings at 1207
M. Cherif Baffiouni ional Extradition
and World Public Order, 505 (1974)
The Revolutionary Martyrdom of
Johnathan Robbins, L.J. 229 passim (1990)
Treati
United States/Mexico Treaty,
U.F.T. 5059, T.1.A.S. 9656
passim
37
15
2
36
36
36
passim
ad AE Chad
«Ad tehaTi it
l
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
NO.
UNITED STATES OF AMERICA, RESPONDENT
V3.
RENE MARTIN VERDUGO-URQUIDEZ, PETITIONER
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENE MARTIN VERDUGO-URQUIDEZ, by and
through his attorney Patrick Q. Hall respectfully petitions for
a writ of certiorari to review the judgment in the United
States Court of Appeals for the Ninth Circuit in this case.
OPINIONS BELOW
Petitioner Verdugo’s conviction was initially reversed
and remanded to the District Court reported at 939 F.2d
1341. Certiorari was granted and this matter was remanded
to the Ninth Circuit in light of the opinion m United States
v._Alvarez- in. US. , 112 5.C%. 2986 (1992)
Subsequently the Court of Appeals, by divided vote reversed
9
~
in part and affirmed in part. The opinion of the Court of
Appeals (App., infra, la-19a) is unreported. The opinion of
the District Court is unreported. Portions of the dialogue
and argument at the time of the presentation of the motion
are contained at Appendix "C". (App., infra, 21a-24a)
JURISDICTION
The judgment of the Court of Appeals was entered on
August 5, 1994. The jurisdiction of this Court is invoked
under 28 U.S.C. section 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fifth Amendment to the United States
Constitution provides:
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
ee
3
i due process of law; nor shall private property
be taken for public use, without just
compensation.
TREATY INVOLVED
Se ee ees ere a ~
The extradition treaty between the United States of
wihndas ee
America and the United Mexican States, May 4, 1978, 31
U.F.T. 5059, T.1.A.S. No. 9656 is reprinted in an appendix
ie SR RY aN te
(App., infra, 25a-40a ).
STATEMENT
Ne a Rk She ena DIE:
l. On August 3, 1985, Drug Enforcement Agents
obtained information connecting Petitioner Verdugo to the
alleged importation of several tons of marijuana to the United
A Nia wee BR we oe Moe
States. These agents obtained a sealed criminal complaint
against Petitioner Verdugo in United States District Court for
the Southern District of California. The initial complaint
aaah dea yea Shel IES SS dein RS yh aint
charged him with narcotics offenses exclusively. Based upon
the complaint, the District Court issued a warrant for
Senate OA nei Ui Seale nia: ar Anau
Verdugo’s arrest. On January 24, 1986, Petitioner Verdugo
was stopped by six Mexican police officers while driving his
4
car in San Felipe, Mexico. There, as has been previously
stated by the Solicitor General in his previous briefs (see
Petition for Writ of Certiorari, United States Court of
Appeals Case No. 88-1353), Petitioner was ordered out of
his car, arrested, handcuffed and placed in the back seat of
the officers’ car. Ultimately, Petitioner was then driven to
the Mexican/American border where he was turned over to
awaiting United States Marshals. What happened however
between the time of the initial issuance of a warrant of arrest
and Petitioner's arrest in Mexico by Mexican police officers
has never been fully developed.
In its briefs in connection with the related appeal 88-
1353, Solicitor General has noted that the DEA asked the
United States Marshals Service to determine whether
Mexican officials could apprehend Petitioner in Mexico and
deliver him to the United States for trial. (See Petition for
Writ of Certiorari at page 2). In January of 1986, Mexican
law enforcement officers allegedly advised the Marshals
5
Service that Verdugo could be arrested if there was an
outstanding American warrant for his arrest. Reportedly, the
United States Marshals Service then showed Mexican
authorities a Federal arrest warrant. (See Solicitor General’s
Petition for Writ of Certiorari). More importantly, it is
believed that at an evidentiary hearing, Petitioner could
establish that U.S. authorities made inquiries during this time
period about the extradition and provisional arrest of
Petitioner.
This court has previously ruled upon the validity of
the search of Petitioner’s residence in United States vy,
Verdugo-Urquidez, 494 U.S. 259 (1990). In that case
evidence was developed regarding the search of his home the
following day by U.S. officials and mexican Federal Judicial
Police. There it was established that high-ranking
Department of Justice officials were present in San Diego at
the time of the arrest of Verdugo, that the top law
enforcement official in Mexico was contacted for permission
6
to search Verdugo’s residence, and that DEA officials in
Mexico City assisted in dealing with the Mexican authorities
to obtain permission to search the house. The hearing was
limited however to the facts relating to the search and
Petitioner was not permitted to inquire about the
circumstances of his arrest, particularly the efforts of the
U.S. authorities to seek the provisional arrest of Petitioner.
Similarly, the Central Distct Judge did not permit any
hearing regarding the circumstances of Petitioner's arrest.
On April 23, 1986, the Embassy of Mexico presented
a Diplomatic Note to the United States Department of State,
requesting information about newspaper reports that
Petitioner had been abducted in Mexican territory by former
Mexican police officers who were hired by United States
authorities. The note alleged that if those reports were true,
that a violation of Mexican and international law had
occurred. On March 16, 1987, the State Department replied
that Petitioner’s “apprehension . . . was effected pursuant to
ee ee ee eS ee ee ee ee ee a a ee ee
7
the long standing local practice of cooperation between law
enforcement agencies of the United States and the Republic
of Mexico,” and that "the Mexican officials involved were
not hired by the United States authorities."
A second Diplomatic Note presented on August 26,
1987 by the Embassy of Mexico to the State Department,
asserted that the federal district judge presiding over the
narcotics Case against Petitioner had found that DEA officials
had paid Mexican police officer $32,000 to kidnap Petitioner
and bring him to the United States for trial. The Note added
that Mexico "cannot recognize as valid a judicial practice that
disregards the procedures established by the extradition treaty
currently in force between Mexico and the United States."
The Note further requested "the kind mediation of the
Department of State in informing the corresponding judicial
authorities of the position of the Mexican Government."
In the reply of the Department of State dated
February 26, 1988, the United States indicated that the
8
Department of Justice had been requested to send a copy of
Mexico’s Note and the Department of State’s Note to the
appropriate judicial authorities. The Note also took issue
with Mexico’s assertions concerning the circumstances of
Verdugo’s apprehension. The Note expressly indicated that
2. On March 16, 1988, a grand jury in the Central
District of California returned a five-count Indictment
charging Petitioner Verdugo with offenses growing out of the
torture and kidnapping of Special Agent Enrique Camarena.!
Petitioner filed motions to dismiss the Indictment and
' The Indictment charged Petitioner with two counts
of committing violent crimes in furtherance of racketeering
in violation of 18 U.S.C. 1952(B); one count of conspiracy
to kidnap a federal agent and one count of kidnapping a
federal agent in violation of 18 U.S.C. 1201(c) and
1201(a)(5) and one count of murder of a federal agent in
violation of 18 U.S.C. 1111.
ee a re
9
expressly requested an evidentiary hearing regarding the
circumstances of Petitioner’s apprehension. One of these
motions sought to dismiss the first superseding indictment
charging these offenses pursuant to the Principle of Specialty
contained with Article XVII of the United States/Mexican
Extradition Treat, as well as pursuant to the Due Process
Clause to the United States Constitution. These motions
were denied and trial commenced on July 27, 1988.
As to Petitioner Verdugo, the evidence consisted of
the following: On February 7, 1985, at approximately 1:45
p.m., Agent Camarena of the DEA assigned to Guadalajara
left the office. On February 7, 1985, at approximately 4:30
p.m., Petitioner Verdugo checked in to the Hyatt Regency
Hotel in Guadalajara, Mexico. Several telephone calls were
made, and on February 8, 1985, the hotel records reflect that
room service was ordered in one of the rooms. On February
9, 1985, the records reflect that Verdugo checked out. Jorge
10
Gomez Espana testified that on February 7 or February 8,
1985, he went to 881 Lope de Vega, where at approximately
6:00 p.m. to 7:00 p.m., he saw Verdugo with someone
identified as a Comandante outside the residence. Verdugo
asked him for a ride to the Hyatt Regency. Gomez Espana
testified that Verdugo responded "You think you had a
problem, don’t pay attention to it. I’ve been trying to get a
hold of this guy for a few days to get another problem
solved, and | did too.”
Subsequent investigation by the FBI recovered a hair
which an FBI agent testified was substantially similar to the
hair belonging to Verdugo. Further expert testimony placed
this hair in the same room as a hair belonging to Enrique
Camarena. Fibers and cords subsequently recovered from
Camarena’s body linked his interrogation to this residence at
881 Lope de Vega.
Another witness testified that between March and
ES ee
1]
May of 1985, he went on a car ride with Verdugo, Don
Walters and himself. At that time, Verdugo and Walters had
a conversation primarily in Spanish which the witness did not
understand. While in the back seat of the vehicle, the
witness testified that he heard Verdugo say, “something
about someone being beat to shit and they were begging and
crying.” Another witness testified that he had been involved
in a marijuana smuggling operation for Verdugo and that on
one occasion Verdugo discussed Caro Quintero. A
helicopter pilot testified that he sold marijuana for Verdugo
and had met Rafael Caro-Quintero once or twice at an air
strip in Mexico. Verdugo had told him that he was the
number two man to Caro-Quintero.
At trial, several copies of a tape were played for the
jury. The tape consisted of the alleged interrogation of
Enrique Camarena. DEA Agents, having listened to the
tapes for a number of hours, identified one of the
a i,
12
interrogators on the tape as Sergio Espino Verdin.
During the trial, the Government produced for the
first time reports reflecting that Sergio Espino Verdin had
admitted being present at Lope de Vega while in custody and
interrogated by Drug Enforcement Agents. In those
statements, he indicated that Verdugo was not present during
the investigation. Upon learning of the existence of the
reports, defense counsel requested introduction of the
Statements pursuant to Rule 804 of the Federal Rules of
Evidence. The trial court denied admission of these
statements, refused to continue the trial to allow trial counsel
to interview Espino Verdin (who was in custody in a
Mexican Jail), or to continue the trial to obtain the deposition
of Espino Verdin.
At closing arguments, the prosecutor’s first words in
closing argument were that "Neither all great Neptune’s
oceans or any interpretation of the facts could wash the blood |
13
from Verdugo’s hands." The prosecutor called Enrique
Camarena a hero, whose only fault was that he did his job
well, and that he was beaten until "his life slowly drained
from his body." During closing arguments, the prosecutor
argued that Verdugo was present during the interrogation of
Camarena and did nothing but continue to request that the
interrogator, Espino Verdin, continue the questioning to find
out what else he [Camarena] knew about the Verdugo’s
operation. The prosecutor called the defense attorneys
magicians and asserted that they will "focus your attention
someplace else while he is doing the trick with the other
hand."
Finally, the prosecutor closed with the statement,
"Enrique Camarena, from his grave, cries out for justice.
He cries out for justice that the people that have done this to
him, that these ungodly acts be brought to justice and he will
not rest in peace, he cannot rest in peace, nor can I, until
14
justice is done." All of these statements occurred before any
defense counsel in the trial made any comments whatsoever.
Defense immediately made a motion for mistrial based upon
these comments which was denied. The only curative
instruction given during the trial was that the arguments of
counsel are not evidence.
Petitioner's defense at trial was that he was present at
Lope de Vega to report to Caro-Quintero about the seizure
of marijuana by U.S. authorities on February 5, 1985.
Evidence was introduced to the effect that on prior occasions,
when marijuana was seized or moldy, that Petitioner had to
report this to some representative of Caro-Quintero, on one
occasion his brother Miguel. Petitioner requested the
following instruction, "Unless convinced beyond a reasonable
doubt that Rene Verdugo went to 881 Lope de Vega to
participate in the interrogation of Camarena, you must find
him not guilty of all charges." The Court refused to give
this instruction.
After a two month jury trial, Petitioner was convicted
of all counts in the Indictment. He was sentenced to four
consecutive 60 year terms of imprisonment plus life
imprisonment.
a The Court of Appeals initially reversed Petitioner's
conviction (939 F.2d 1341). The Court of Appeals
concluded that the manner of Verdugo’s apprehension
violated the United States/Mexico Extradition Treaty and
remanded the case specifically to conduct an evidentiary
hearing regarding the circumstances of Verdugo’s
apprehension. The Solicitor General petitioned for a writ of
certiorari. Petitioner Verdugo objected to the Petition on the
grounds that the issues were not ripe for decision on appeal
and that no evidentiary hearing had ever been conducted
relating to the circumstances of his apprehension. The Court
granted the writ of certiorari, vacated the judgment and
16
remanded the case to the United States Court of Appeals for
further consideration in light of United States v. Alvarez-
Machain, _U.S._____ 112 S.Ct. 2986 (1992).
On June 22, 1994, by divided vote, the Court of
Appeals affirmed Verdugo’s conviction with respect to four
out of the five counts. One of the convictions relating to
Alfredo Zavala, violation of 18 U.S.C. section 1952, was
reversed due to the insufficiency of the evidence. Justice
Reinhardt dissented concluding that all of the evidence was
insufficient with respect to all of the remaining counts.
The Court of Appeals concluded that Verdugo could
not rely on the Doctrine of Specialty “assuming” that he was
in fact not extradited pursuant to the treaty. Id at 3a. The
Court concluded that even if high ranking Mexican officials
were involved in planning Verdugo’s apprehension and their
insistence on the existence of an arrest warrant pursuant to
Article 11 of the United States/Mexico Extradition Treaty,
BO Si inl Ya el i
Pee Pane PE ee SER, ee ee
17
that Verdugo could not assert the protections of the treaty.
The Court concluded that under the Treaty, a formal request
by the United States is necessary to initiate extradition
proceedings, and therefore, even if provisionally arrested at
the request of the United States pursuant to the United
States/Mexico Extradition Treaty, Verdugo could not assert
the Doctrine of Specialty. Therefore, the court concluded
that Verdugo was not entitled to an evidentiary hearing
avsent allegations of the existence of formal request for
extradition by the United States. Id at 4a.
The Ninth Circuit also concluded that the District
Court did not abuse its discretion by excluding testimony that
Espino Verdin told [Mexican police] that Verdugo was noi
present at Lope de Vega during the interrogation of
Camarena. The actual statements sought to be introduced
were that Espino Verdin told DEA Agents present at the
Mexican jail that Verdugo was not present at Lope de Vega
18
during the interrogation of Camarena. The Ninth Circuit
concluded that the statement failed to satisfy the requirements
based upon its lack of corroborating circumstances indicating
that the statement was trustworthy. The Ninth Circuit
reasoned that because the statement was not spontaneous and
was taken while Espino was in the custody of the Mexican
Federal Judicial Police under questioning regarding his role
in the kidnapping and torture of Camarena and Zavala, it was
not trustworthy. Accordingly, the court concluded that there
was no evidence directly corroborating Espino’s statement
and that the statement was contradicted by other
(unidentified) testimony placing Verdugo at Lope de Vega.
The Court also noted that the statement was not strongly
against Espino’s penal interest. Notwithstanding its late
delivery midway through the trial, the Court concluded that
it Was not error to deny a continuance to interview Espino
Verdin or seek to obtain the deposition of Espino Verdin.
A BE i igh RS OLR ie ont mite ind BLS Oh
NE, et a A Bt. de
a ES PO Ae Ns Ca
19
The Court below also concluded-that the inflammatory
comments disparaging defense counsel and vouching for the
credibility of witnesses were "acceptable advocacy" relying
upon its prior opinion in United States v. Lopez Alvarez, 970
F.2d 583 (9th Cir. 1992). In Lopez Alvarez, the court
concluded that the propriety of a prosecutor’s remarks must
be judged in relation to what constitute a fair response to the
remarks of defense counsel. Id. at page 597. The court
there concluded that most of the comments challenged by
Lopez Alvarez were made in response to comments made by
defendant’s counsel. The court concluded that viewed in the
context of defense counsel’s comparison of the prosecutor to
the Wizard of Oz, that remarks were, although not highly
desirable, acceptable advocacy. Id at page 598.
The arguments specifically referenced by Verdugo as
objectionable were those made by Assistant United States
James Gurule, prior to any closing argument by any defense
20
counsel in the case, not the comments made during rebuttal
by a different attorney assigned to the case.
Finally, the Ninth Circuit concluded that the theory of
defense jury instruction was inadequate since there was
"sufficient evidence Verdugo was a member of a conspiracy
to kidnap, interrogate and murder Camarena". The jury
could have convicted Verdugo even if he went to Lope de
Vega for reasons other than to interrogate Camarena.
Ciruit Judge Reinhardt dissented from the decision
concluding that the evidence was insufficient to support the
verdict. He concluded that the only concrete evidence that
the Government had provided for the convictions was that
Verdugo may have had a motive to participate in the
conspiracy, and that on or about the day of the murder, he
was present at the large compound where Camarena was held
captive. Judge Reinhardt concluded that Verdugo’s statement
that he had “taken care of a problem" was extremely vague
et nS ee Oe ee
Nok Cian BD el RE an SOT) 1 ee NCSA Ht IG LES Re i aie
DO tall tel VE EEA AE SMD ORES et CR ton FRM Reid bc tine
21
and of little evidentiary worth “because there was no
evidence suggesting that the problem in question was
Camarena.” ‘The dissent also concluded that the evidence
relating to Verdugo’s statement as to the beating of a "narc"
carried little probative worth since there was no proof that
Verdugo was relating an incident that he personally witnessed
or doing anything more than referring to what was by then
an undoubtedly well-known story. The dissent also
concluded that the evidence relating to a hair "substantially
like Verdugo’s” in a room where Camarena "was most likely
tortured and interrogated was insufficient to establish
Verdugo’s participation in the crimes charged.
A petition for Rehearing and Suggestion for
Rehearing En Banc was denied on August 5, 1994, with an
amendment of the opinion. On November 5, 1994, Justice
O’Connor granted an extension of time to file the instant
petition until December 2, 1994
22
REASONS FOR GRANTING THE PETITION
l. The opinion of the court below makes a drastic
departure from preexisting case law relating to the
procedures necessary to initiate extradition. The Ninth
Circuit opinion concludes under the treaty, "A formal request
by the United States is necessary to initiate extradition
proceedings.” Citing United States v. Valot, 625 F.2d 308,
310 (9th Cir. 1980). This conclusion of law is erroneous for
a number of reasons, including both the interpretation of the
language of the treaty itself and the existing practice with
respect to the initiation of extradition proceedings.
The United States/Mexico Treaty, T.I.A.S. No. 9656,
specifically contemplates procedures not involving a formal
request for extradition. Article XI of the treaty entitled
"Provisional Arrest" sets forth that in cases of urgency,
either contracting party, meaning the United States or
Mexico, may request the provisional arrest of an accused or
Ce
23
convicted person. (App., infra, 3la.) The request shall
contain a description of the offense for which the extradition
is requested, a description of the person sought and his
whereabouts, a declaration of the existence of a warrant of
arrest issued by competent judicial authority, and most
importantly, "an undertaking to formalize the request for
extradition.” The Ninth Circuit’s opinion clearly ignores the
express language of the treaty relating to undertakings to
formalize the request for extradition. Its conclusion that a
formal request is necessary to initiate the extradition process
simply ignores this express language of the treaty.
The lower court's interpretation of the treaty also
ignores the clear language of Paragraph 2 of Article XI
which mandates that the requested party "shall take necessary
steps to secure the arrest of the person" claimed. The treaty
then sets forth a specific procedure relating to this
provisional arrest and contemplates that subsequent to the
—E—————————
24
provisional arrest, a "formal request for extradition" and the
documents mentioned in Article X be received. Paragraph
3, Article X.(App., infra, 29a-30a)
Moreover, even if the provisional arrest is terminated,
the treaty contemplates that this event should not prejudice a
subsequent forinal request for extradition delivered at a later
date according to Paragraph 4, Article XI. Thus, the arrest
of a person by law enforcement authorities in a foreign
country at the request of the United States is expressly
provided for in the United States/Mexico Extradition Treaty.
The lower court’s interpretation also flouts accepted
principles of treaty interpretation set forth by this Court. In
interpreting an international treaty, Courts should be mindful
that it is in the nature of a contract between nations to which
general rules of construction apply. Societe Nationale
Industrielle Aerospatiale v. United States District Court, 482
U.S. 522, 533 (1987). In Air France v. Saks, 470 U.S. 392,
25
397 (1985), this Court held that a court must begin
interpretation of the treaty with the text of the treaty and the
context in which the written words are used. There, the
court said that in construing a treaty, a court has the
"responsibility to give the specific words of the treaty a
meaning consistent with the shared expectations of the
contracting party." Aur France v. Saks, supra, at page 399.
The clear import of treaty language controls unless
application of the treaty according to its obvious meaning
effects a result inconsistent with the intent or expectations of
its signatories. Sumotomo Shoji American Inc. v.
Avagliano, 457 U.S. 176, 180 (1982); Maximov v. United
States, 373 U.S. 49, 54 (1963); see also The Amiable
Isabella, 6 Wheat 1, 72 (1921).
In Factor v. Laubenheimer, 290 U.S. 276 (1933), this
Court stated:
In choosing between conflicting interpretations
26
of a treaty obligation, a narrow and restrictive
construction is to be avoided as not consonant
with the principles deemed controlling in the
interpretation of international agreements.
Considerations which should govern the
diplomatic relations between nations, and the
good faith of treaties, as well, require that
their obligations should be liberally construed
so as to effect the apparent intention of the
parties to secure equality and reciprocity
between them. For that reason if a treaty
fairly admits of two constructions, one
restricting the rights which may be claimed
under it, and the other enlarging it, the more
liberal construction is to be preferred. Id. at
pages 293-294.
Application of these principles of treaty interpretation
leads to the inevitable conclusion that the lower court's
interpretation of the treaty relating to requiring a formal
request by the United States to initiate extradition
proceedings is contrary to the intent of the parties, the clear
import of the treaty language and the considerations of
diplomatic relations and good faith to be associated with the
treaty.
27
Moreover, the lower court’s interpretation of the
treaty clearly ignores preexisting practice with respect to
initiation of extradition proceedings in the United States and
abroad. Quite commonly, extradition proceedings are
initiated based upon an informal request from the foreign
country for the provisional arrest of an individual. See
Charlton v. Kelly, 229 U.S. 447 (1913) (extradition
proceedings initiated by Italian request for provisional
arrest); Grin v. Shine, 187 U.S. 181 (1902) (Imperial
Government of Russia requested provisional arrest); Koskotas
v. Roche, 931 F.2d 169 (ist Cir. 1991) (extradition
proceedings initiated by provisional arrest at the request of
Republic of Greece); Caltagirone v. Grant, 629 F.2d 739 (2d
Cir. 1980) (holding that probable cause is required for
provisional arrest at the request of Italy); United States v.
DiTommaso, 817 F.2d 211 (2d Cir. 1987) (defendant
arrested pursuant to an international provisional arrest
28
warrant in Bermuda); United States v. Riviere, 924 F.2d
1289 (3d Cir. 1991) (provisional arrest in Dominica); Matter
of Extradition of Russell, 805 F.2d 1215 (Sth Cir. 1986)
(request for provisional arrest from Colombia initiated
proceedings before receipt of formal request); Petition of
Geisser, 627 F.2d 745 (Sth Cir. 1980) (proceedings initiated
by request for provisional arrest followed by Switzerland's
later received formal request); In re Assarssyn, 635 F.2d
1237 (4th Cir. 1980) (noting that United States/Sweden
Extradition Treaty has no requirement that formal charges be
filed); Sahagian v. United States, 864 F.2d 509 (7th Cir.
1988) (civil suit initiated following Plaintiff's provision arrest
in Spain at request of the Department of Justice official);
United States v. Thirion, 813 F.2d 146 (8th Cir. 1987)
(defendant provisionally arrested in Monaco before formal
extradition request); United States v. Wiebe, 733 F.2d 549
(8th Cir. 1984) (United States Attorney obtained provisional
2
F
a
;
Z
:
29
arrest warrant based upon Interpol telex advising defendant
would be changing planes at Minneapolis Airport); Valencia
v. Limbs, 655 F.2d 195 (9th Cir. 1981) (United States
obtained provisional arrest warrant of petitioner sought by
Mexico); Sami v. United States, 617 F.2d 755 (D.C. Cir.
1979) (plaintiff was provisionally arrested by German
officials based upon receipt of communique from United
States with Interpol).
These opinions implicitly recognize that the
extradition process may be initiated pursuant to an informal
request. The lower court’s interpretation of the requirements
to initiate extradition proceedings is inconsistent with all
Other circuits and creates a conflict among the circuits
warranting review.
The lower court’s ruling also ignores preexisting
Supreme Court case law relating to the application of the
Principle of Specialty. In United States v. Rauscher, 119
30
U.S. 407 (1886), this Court held that a person extradited
pursuant to the Great Britain/United States Extradition Treaty
had standing to object to his prosecution on different charges
in the United States, notwithstanding the absence of a
provision in the treaty adopting the Principle of Specialty.
The Court specifically noted that "The proposition of the
absence of express restriction in the treaty of the right to try
him for other offenses than that for which he is extradited is
met by manifest scope of the treaty itself." Rauscher, at
page 42.
In Rauscher, the Court further explained the relevant
interpretation of the provisions of the treaty:
It cannot hardly be supposed that a
Government which is under no treaty
obligation or any absolute obligation of public
duty to seize a person who had found an
asylum within its bosom and turn him over to
another country for trial, would be willing to
do this, unless the case was made of some
specific offense of a character which justified
the Government into depriving the party of his
31
asylum. It is unreasonable that the country of
the asylum should be expected to deliver up
such a person to be dealt with by the
demanding government without any limitation,
implied or otherwise, upon its prosecution of
the party. [The foregoing authorities] all
show [the treaty] is for a limited and defined
purpose that the transfer is made, it is
impossible to conceive of the exercise of
jurisdiction in such a case for any other
purpose than that mentioned in the treaty, and
ascertained by the proceedings under which
the party is extradited, without an implication
of fraud upon the rights of the party extradited
and of bad faith to the country which
permitted his extradition. No such view of
solemn, public treaties between the great
nations of the earth can be sustained by a
tribunal called upon to give judicial
construction to them.
United States v. Rauscher, supra, at page 422.
The opinion of this Court in United States v. Alvarez-
Machain, __ U.S. __ 112 S.Ct. 2188 (1992) does not
detract from this conclusion. There, the Court expressly
distinguished the opinion of United States v. Rauscher
relating to the fact that there was no issue of a forcible
32
abduction and concluding that Rauscher had been brought to
the United States by way of an extradition treaty. Alvarez-
Machain simply held that Machain’s forcible abduction
through the participation of DEA Agents and paid kidnappers
in Mexico did not violate the treaty. However, in the instant
case, Petitioner Verdugo was not arrested by private citizens
working for the Drug Enforcement Administration, but rather
by Mexican police officers. The only court to consider any
evidence relating to the circumstances of his arrest said that
Verdugo was arrested, not simply kidnapped and abducted.
This same court concluded that the United States had
explored possibilities of extraditing Verdugo and that
Mexican officials expressly requested an arrest warrant, one
of the requirements set forth in Article XI relating to
provisional arrest. Under these circumstantce and in light of
the above-cited case law a review of the Ninth Circuit
opinion should be granted.
ee
33
2. Since his apprehension on January 24, 1986,
Petitioner has never had an opportunity to set forth in an
evidentiary hearing the facts and circumstances reiating to his
apprehension in Mexico. He was first arrested by law
enforcement officers pursuant to a warrant in the Southern
District of California. The Honorable J. Lawrence Irving
conducted in camera proceedings based upon Verdugo’s
assertions that his kidnapping violated the Due Process
} Clause to the United States Constitution. During these
proceedings, Petitioner Verdugo's counsel did not raise
issues relating to whether his arrest violated the Extradition
Treaty. Accordingly, Judge Irving did not address issues
raised by the instant motion.’ Judge Irving expressly made
: no findings with respect to the Government’s actions seeking
Verdugo’s arrest, or circumstances relating to the
* This hearing was conducted in camera and Verdugo
was not permitted through counsel to participate.
34
negotiations for his arrest. His findings related solely to the
manner of the circumstances attendant to Verdugo’s arrest in
Mexico.
The lower court’s conclusion that an evidentiary
hearing regarding the circumstances of Petitioner’s arrest and
particularly a determination whether he was provisionally
arrested is simply not necessary, conflicts with preexisting
United States Supreme Court authority guaranteeing an
individual under the Due Process Clause to the United States
Constitution a meaningful opportunity to be heard.
This Court has long held that an essential principle of
due process is that a deprivation of liberty be proceeded by
notice and an opportunity for hearing appropriate to the
nature of the case. Mullane v. Central Hanover Bank and
Trust Co., 339 U.S. 306, 313 (1950). In a series of
decisions beginning with Sniadach_ v. Famiy Fin,
Corporation, 395 U.S. 337 (1969), the Court outlined
35
procedural due process requirements in connection with
seizure of property or wages emphasizing the need for pre-
Or post-seizure hearings. See Fuentes v. Shevin, 407 U.S.
67 (1972); Mitchell v. W.T. Grant Co., 416 U.S. 600
(1974); North Georgia Finishing Inc, v. Dichem, 419 U.S.
601 (1975). Although these opinions deal with due process
requirements attendant to the seizure of property or
possessions, no less a right to a pre- or post-seizure hearing
can be afforded a person contesting the deprivation of his
liberty.
The significance of affording Verdugo a hearing
relating to the circumstances of his arrest dates back to the
marked change in policy and concerns that drove Congress
in 1848 to grant judges and magistrates their current role in
the extradition process. Between 1794 and 1842 the
executive exercised complete control over extradition without
reference to the courts. Eian v. Wilkes, 641 F.2d 504, 513
36
fn.13 (7th Cir.), cert. denied, 454 U.S. 894 (1981) (citing
~hetif Baffiouni | or World
Public Order, 505 (1974)). Public outcry following a
particularly controversial extradition case in the early 1800's
prompted the Executive to include language in the next
extradition treaty negotiated to provide for judicial
involvement. See Jacques Semmelman International
Extradition Proceedings at 1207 (discussing Webster-
Ashburton Treaty between United States and Great Britain
signed in 1842); see also Ruth Wedgewood, The
Revolutionary Martyrdom of Johnathan Robbins, 100 Yale L.
J. 229, passim (1990).
Thus, in 1852 the Supreme Court recognized that
"Extradition without an unbiased hearing before an
independent judiciary is highly dangerous to liberty." Jn re
Kaine, 55 U.S. 14 How., 103, 112 (1952). In the instant
case, the Ninth Circuit's erroneous interpretation of the
37
treaty coupled with its failure to grant Verdugo a hearing
regarding the circumstances of his arrest clearly violated
Petitioner's Due Process rights to an opportunity to be heard
in a meaningful manner. Simply filing a motion without any
ability to present evidence or establish in an evidentiary
hearing the circumstances attendant to his provisional arrest
have deprived him of his ability to establish that he was
provisionally arrested pursuant to the terms of the treaty and
therefore that the Principle of Specialty should apply to
preclude his prosecution in the instant charges.
In Florida _v. Royer, 460 U.S. 491 (1983), the
Supreme Court held that the determination of whether a
person was under arrest was dependent upon the totality of
the circumstances. Thus, the ultimate determination of
whether an individual was arrested or simply detained under
the Fourth Amendment rested upon facts developed at an
evidentiary hearing. Although the Fourth Amendment is not
38
being asserted herein, Due Process suggests that the same
procedure be utilized to determine the existence of a
provisional arrest under the treaty.
3. The lower court’s opinion imposes a requirement
under Rule 804(b)(3) of the Federal Rules of Evidence that
in effect requires conclusive evidence of trustworthiness prior
to admission of an out of court statement. The Ninth
Circuit’s conclusion in essence creates a conflict between
circuits regarding whether the statement should be
trustworthy or rather whether the declarant should be
trustworthy. See United States v. Brainard, 690 F.2d 1117
(4th Cir. 1982). United States v. Lopez, 777 F.2d 543 (10th
Cir. 1985).
The court below applied an undefined and
indecipherable test to conclude that the statement did not
have any corroborating circumstances to clearly indicate the
statement was trustworthy. The court then concluded that the
..
/
3
a
Ag
39
trustworthiness of the statement was undermined by the fact
that it was not spontaneous and was taken while Espino was
in custody of Mexican Federal Judicial Police under
questioning regarding his role in the kidnapping and torture
of Camarena and Zavala. To the contrary, the fact that
Espino was in custody of Mexican Federal Judicial Police
und was responding to questions imposed by Drug
Enforcement Administration agents regarding his
participation in this conspiracy, and his presence at the
interrogation of Camarena, indicate its trustworthiness. The
lower court’s assertion that there was no evidence directly
corroborating Espino’s statement completely ignores factors
which should be considered in assessing the trustworthiness
of a statement. Particularly, the Government introduced tape
recordings of the alleged interrogation of Camarena.
Government agents identified Espino Verdin as the person
conducting the interrogation and asking questions. The
40
Government’s evidence also established, as was argued by
prosecutors during closing argument, that Verdugo was
present in one room of a very large compound as evidenced
by the presence of his hair and the evidence of Camarena’s
hair. These facts strongly corroborate Espino’s statements
that he was present at the interrogation. There was no other
testimony introduced at trial which contradicted Espino’s
Statements that Verdugo was not present at the interrogation
as opposed to his presence at the compound. The only
evidence establishing Verdugo was present was his hair and
the witness Gomez-Espana who testified that Verdugo was
present on the afternoon of February 8, 1985. Gomez-
Espana did not testify that he saw Espino there.
Espino’s statement that Verdugo was not present at
the interrogation directly inculpated Espino as being present
at the interrogation. The statement was particularly critical
to the defense and prejudiced Petitioner by its exclusion in
4]
light of the Government’s argument that Verdugo must have
been present during the interrogation [by Espino Verdin of
Camarena] when the tape recording was stopped after
Camarena first mentioned the name Verdugo. The statement
was critical to contradict this argument presented by the
prosecutor and inferences to be drawn solely from the
presence of Verdugo’s name on the tape recording.
Thus, the Ninth Circuit's interpretation of
corroborating circumstances seriously undermines
interpretation of the Federal Rules of Evidence by other
circuits and highlights the need for consistent and definitive
guidelines to determine the trustworthiness of statements.
At a minimum, given the circumstances, the late
disclosure of the Espino Verdin reports, the refusal to grant
a continuance for the interview of Espino Verdin or to take
the deposition of Espino Verdin who was in custody in
Mexico, all deprived Petitioner of his right to a
42
fundamentally fair trial and mandate reversal of his
conviction.
+ Until this decision by the Court of Appeals, the
Doctrine of "Invited Response" recognized that in United
States v. Young, 470 U.S. 1 (1985), had only been applied
to place in context a prosecutor’s rebuttal arguments made in
response to the closing arguments made by defense counsel.
For several reasons, the lower court’s decision applying this
principle is wrong and warrants review.
First, the Ninth Circuit improperly expands the
"invited response" doctrine espoused in United States v.
Young, 470 U.S. 1 (1984) to include situations in which the
prosecutor’s non-rebuttal remarks which are inflammatory
and invite the jury to ignore the evidence presented and the
reasonable inferences to be reached therefrom. The lower
court’s ruling permits justification of such improper remarks
based upon the tenor of the subsequent response by defense
43
counsel.
The lower court’s decision incorrectly noted in
Lopex-Alvarez, that most of the comments were made in
response to comments made by defendant’s counsel. This
conclusion is factually inaccurate with respect to Petitioner.
The comments objected to and set forth in the statement were
all made by Assistant United States Attorney James Gurule
who made the closing argument by the prosecution.
Assistant United States Attorney Raul Campos made the
rebuttal argument. After the comments that Enrique
Camarena cried out from the grave for Justice and that no
interpretation of the evidence would wash the blood from
Rene Verdugo’s hands, defense counsel moved for a mistrial.
The only curative instruction given by the Court was that the
arguments of counsel were not evidence. In light of the
Court’s refusal to issue a more definitive curative instruction,
defense counsel was faced with responding in kind to the
ad
remarks of the prosecutor or totally ignoring them. When
defense counsel then challenged these remarks with
arguments of their own, these comments should not be
characterized as an "invited response”.
The lower court ruling then permits these comments
to be considered in context to determine whether Petitioner
has been deprived of a fair trial. This type of analysis
degenerates into a balancing test of which side made the most
improper closing arguments and does not comport with this
Court’s prior rulings. Nearly a half of a century ago, this
Court counseled prosecutors to refrain from improper
methods calculated to produce a wrongful conviction. Berger
v. United States, 295 U.S. 78 (1935). Similarly, this Court
has concluded that prosecutorial remarks in closing argument
may be sufficiently prejudicial to deprive the defendant of his
constitutional right to a fair trial. Donnelly v. DeChristoforo,
416 U.S. 637, 645 (1974).
45
The opinion below ignores preexisting Supreme Court
precedent noting the impropriety of prosecutor’s remarks
relating to the victim’s impact characteristics. See Booth v.
Maryland, 482 U.S. 1496 (1987)(where the Court held that
Statements of victim impact violated the principle that a
sentence of death must be related to the moral culpability of
the defendant and were "wholly unrelated to the
blameworthiness of a particular defendant. "); South Carolina
v. Gathers, 490 U.S. 805 ( 1989)(concluding that prosecutor’s
reference to victim’s religious background was improper
mandating reversal of the penalty phase.)
These opinions both clearly indicate that a victim’s
impact is totally irrelevant to the determination of defendant’s
culpability and the imposition of the death penalty. Such
remarks are even more irrelevant to the determination of
guilt or innocence as argued in Petitioner’s case.
The lower court’s determination also invites
46
prosecutors to commence closing argument with outrageous
inflammatory statements and then justify these outrageous
and inflammatory statements based upon the anticipated
response in kind by defense counsel. Defense counsel is then
faced with the strategy of effective advocacy by responding
to vicious and foul blows by the prosecution or ignoring
them in the hopes that defendant’s conviction might be
reversed on appeal. This clearly places a chilling effect upon
the possible effective representation by trial counsel and
involves a balancing/waiver of constitutional rights by a
defendant invoking the right to effective assistance in closing
argument, and Fifth Amendment right to a fundamentally fair
trial. The Ninth Circuit's opinion improperly emphasizes
defense counsel's response to determine whether a
prosecutor’s action has violated defendant's due process right
to a fair trial.
Finally, the Ninth Circuit’s opinion unduly minimizes
47
the significance of the prosecutor's uninvited remarks and the
context of the. evidence as it related to the particular
defendants in the case. Unlike codefendant Lopez-Alvarez,
who had confessed to his involvement in the conspiracy, who
was identified by DEA Agents as participating in the
conspiracy at the Guadalajara Airport, and was on tape
conspiring to murder yet another federal agent, the evidence
against Verdugo was at most minimal, and as one Ninth
Circuit Justice concluded, insufficient to convict him of the
offenses. The Ninth Circuit opinion completely and
improperly encourages courts to ignore the sufficiency of the
evidence and the relative strength of the evidence and rely
instead on co-defendant’s counsel’s remarks in the context of
closing argument to justify totally improper and inflammatory
remarks irrelevant to the determination of guilt or innocence
and inciting the jury to rely on its passion and prejudice.
Therefore, certiorari should be granted based upon the
48
improper application of the contextual review of the
prosecutor’s closing remarks.
a A number of circuits have held that a defendant is
entitled to a charge to the jury which precisely and
specifically, rather than merely generally or abstractly points
to the theory of his defense. United States v. Alfonso-Perez,
535 F.2d 1362 (2d Cir. 1976); United States v. Pedroza, 750
F.2d 187 (2d Cir. 1984); United States v. Lewis, 592 F.2d
1282, 1286 (Sth Cir. 1979); United States v. Duncan, 850
F.2d 1104 (6th Cir. 1988); United States v. Scott, 789 F.2d
795, 797 (9th Cir. 1986).
The court below concluded that since there was
sufficient evidence Verdugo was a member of the conspiracy
to kidnap, interrogate and murder Camarena, the jury could
have convicted Verdugo even if he went to Lope de Vega for
reasons other than to interrogate Camarena. The only
evidence to which the Court of Appeals conceivably refers
a -
a NS es 2 .
49
was Verdugo’s presence at Lope de Vega and his
involvement with Rafael Caro-Quintero in conjunction with
marijuana smuggling operations. Simply put, the Ninth
Circuit expands the Pinkerton theory of culpability from a
conspiracy to import marijuana into the United States, and
subjects a member of the conspiracy to any acts done by any
member of the conspiracy, no matter how unforeseeable or
unrelated. Caro-Quintero’s and others’ efforts to kidnap,
interrogate and murder Camarena, a Drug Enforcement
Administration agent stationed in Guadalajara, are not
reasonably foreseeable within the scope of a conspiracy to
import marijuana into the United States. The Ninth Circuit’s
cursory analysis of the facts relating to Verdugo’s
participation in the kidnapping stems from the illogical
conclusion that Verdugo is responsible as a member of a
conspiracy to import marijuana for the actions of Caro
Quintero in kidnapping and interrogating Camarena. There
50
was no evidence presented to establish anything other than
Verdugo’s mere presence at the scene of Lope de Vega on
the date the Government believed that Camarena was
interrogated. The fact that Camarena mentioned Verdugo’s
name on the interrogation tapes does not establish that
Verdugo was present or was even involved in the conspiracy
to kidnap Camarena. Similarly, the statements, made months
after the incident had been well publicized, to the effect that
there was a "narc” and did not even identify Camarena or
purport to be of personal knowledge did not establish
participation in a conspiracy to kidnap. Verdugo’s statement
en route from Lope de Vega that he had taken care of a
“problem” did not establish that Verdugo was there in fact to
take care of Camarena.
The failure to provide the theory of defense
instruction was particularly highlighted by the nature of the
defense Verdugo raised at the trial, namely that his presence
51
at Lope de Vega on the date in question was to explain the
seizure of marijuana in the United States two days preceding.
The court below completely ignored the statement made
contemporaneously to the effect that he had been trying to
get a hold of Caro-Quintero for several days. The statement
was made on February 8, 1985, the day after Camarena had
been kidnapped and three days after marijuana had been
seized in Arizona.
The lower court’s conclusion that the instruction is
wrong is erroneous as a matter of law and undermines
existing circuit case law which establishes that a theory of
defense instruction should be given. Similarly the opinion
implies that mere presence at the scene of a crime is
sufficient. Certiorari should be granted because this Court
has never expressly addressed the issue of whether a theory
of defense instruction should be given as opposed to a charge
which generally or abstractly points to the theory of defense.
52
Similarly, certiorari should be granted to address the Ninth
Circuit’s erroneous conclusion that involvement in a
marijuana conspiracy is sufficient evidence to link Verdugo
to a more specific conspiracy to kidnap, interrogate and
murder Camarena.
CONCLUSION
Based upon the analysis herein and for the above-cited
reasons, Petitioner respectfully requests that this Court grant
certiorari.
Respectfully submitted,
GOLDBERG & HALL
Dated:
PATRICK Q. HALL
Attorney for Petitioner
RENE M. VERDUGO-URQUIDEZ
APPENDIX A
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 88-5462
v. D.C. No. CV-87-
422(A) -ER
RENE MARTIN VERDUGO-URQUIDEZ
MEMORANDUM*
)
)
)
)
)
)
)
)
)
)
Defendant-Appellant. _)
)
al
On Remand from the United States Supreme Court
Argued and Submitted August 11, 1993
San Francisco, California
filed June 22, 1994
Before: BROWNING, D.W. NELSON, and
REINHARDT, Circuit Judges
In United States v. Alvarez-Machain, the Supreme
Court reversed the decision of another Ninth Circuit panel
’ This disposition is not appropriate for publication
and may not be cited to or by the courts of this circuit
except as provided by 9th Cir. R. 36-3.
-2a-
which relied exclusively on our prior decision in the
present case. 112 S. Ct. 2188, 2190-91 (1992), rev'g 946
F.2d 1466 (9th Cir. 1991). The Court thus disapproved
our earlier decision and, accordingly, vacated that decision
and remanded "for further consideration in light of United
Urquidez, 112 S. Ct. 2986 (1992), vacating 939 F.2d 1341
(9th Cir. 1991).
Verdugo’s appeal originally presented numerous
issues; we found it necessary to address only his
jurisdictional challenge based on a purported violation of
the extradition treaty between Mexico and the United
States by the abduction and removal of Verdugo from
Mexico to bring him to trial in this case. 939 F.2d at
1344. Because the Supreme Court rejected uur initial
decision, we must now consider the other issues originally
presented by Verdugo.'
The parties are familiar with the facts and issues:
we restate them only as necessary. We affirm in part and
reverse in part.
I. ABDUCTION ISSUES
Verdugo raises three issues relating to his abduction
and removal to the United States in addition to the issue
' We consider Verdugo’s second and third
supplemental briefs filed after remand only to the extent
they deal with issues originally presented in his opening
brief. (The issues dealt with in Verdugo’s first
supplemental brief were decided by the Supreme Court in
Alvarez-Machain.) We do not consider Verdugo’s
arguments to the extent they relate to matters not in the
record. See Order of March 31, 1993 (striking third
supplemental excerpt of record).
-3a-
resolved by the Supreme Court in Alvarez-Machain. He
asserts a violation of customary international law
independent of the purported breach of the extradition
treaty, violation of the Due Process Clause and violation of
the doctrine of specialty.
Outrageous government conduct is a prerequisite to
Verdugo’s international law and due process claims. See
United States v. Alvarez-Machain, 971 F.2d 310, 311 (9th
Cir. 1992). The government’s conduct in obtaining
custody of Verdugo was not shocking and outrageous. See
, 856 F.2d 1214, 1216
(9th Cir. 1988) (reciting facts of Verdugo’ s abduction by
Mexican authorities), rev’d on other grounds, 494 U.S.
259 (1990).?
Verdugo claims his prosecutior violated the
doctrine of specialty because he was not extradited on the
charges underlying his convictions. We have assumed
Verdugo was not delivered to the United States pursuant to
the terms of the extradition treaty with Mexico. See 939
F.2d at 1343; see also Alvarez-Machain, 946 F.2d at
1466. If this assumption is correct, Verdugo cannot rely
on the doctrine of specialty because that doctrine is
> Although Verdugo seeks an expanded evidentiary
hearing regarding facts surrounding his abduction and
removal from Mexico, the district court has already
conducted a limited proceeding and made findings upon
which we relied in our 1988 decision. See Verdugo-
Urquidez, 856 F.2d at 1216. Among the district court’s
findings was that "[a]t no time was Verdugo beaten,
tortured, physically struck or verbally threatened or
tormented" during his transfer to the United States.
United States v. Verdugo, No. 86-0107-JLI-Crim., slip op.
at 8 (S.D. Cal. Apr. 11, 1986).
-43-
relevant only to extradition. Cf, Uni Vv
785 F.2d 1420, 1422 (9th Cir. 1986) (specialty is
concerned with obligations undertaken by the petitioning
country to obtain extradition).
In an effort to establish he was in fact extradited
and therefore could invoke the speciaity doctrine, Verdugo
sought an evidentiary hearing to show high-ranking
Mexican officials were involved in planning his removal to
the United States and asked for copies of the American
warrants issued for his arrest. Even assuming Verdugo’s
allegations are true, more would be necessary to show the
United States invoked the extradition treaty with Mexico to
obtain custody of Verdugo. Under the treaty, a formal
request by the United States is necessary to initiate
extradition proceedings. No such request is alleged. See
United States v. Valot, 625 F.2d 308, 310 (9th Cir. 1980),
and cases there cited.?
If. SUFFICIENCY OF INDICTMENT
Verdugo challenges the sufficiency of count five of
the second superseding indictment, charging felony
murder. We rejected the same challenge in the appeal of
Verdugo’s co-defendant, Lopez-Alvarez. See 970 F.2d at
596-97. That decision controls here.
Ill. SUFFICIENCY OF EVIDENCE
Verdugo was convicted of the following crimes:
* Verdugo disputes extraterritorial application of the
statutes underlying his convictions. We rejected the same
arguments in the appeals of Verdugo’s co-defendants.
Vv -Alvarez, 970 F.2d 583, 596 (9th
Cir. 1992); United States v. Felix-Gutierrez, 940 F.2d
1200, 1203-06 (9th Cir. 1991).
-Sa-
conspiracy to kidnap a federal agent, in violation of 18
U.S.C. § 1201 (c); kidnapping a federal agent, in violation
of 18 U.S.C. § 1201 (a) (5); felony-murder of a federal
agent, in violation of 18 U.S.C. §§ 1111, 1114; and two
counts of committing violent crimes in aid of racketeering
activity, in violation of former 18 U.S.C. § 1952B, now
codified at 18 U.S.C. § 1959.
In Lopez-Alvarez’s appeal, we upheld the jury’s
finding that the conspiracy to kidnap Camarena existed in
fact. 970 F.2d at 593 (sufficient evidence supported
conviction of Verdugo’s co-defendant of conspiracy to
kidnap Camarena). We need only determine if the
government presented sufficient evidence to link Verdugo
to this conspiracy. See, e.g., United States v. Bautista-
Avila, 6 F.3d 1360, 1362 (9th Cir. 1993). Only a slight
connection is necessary, but it must be proved beyond a
reasonable doubt. Id.
The prosecution presented evidence that Verdugo
was a high-level member of the Caro-Quintero drug
enterprise. Verdugo arranged for large quantities of
marijuana provided by Caro to be imported to Arizona
from Mexico in a helicopter owned by Caro and purchased
with money delivered by Verdugo. On February 5, two
days before Camarena was kidnapped, police seized two _
tons of marijuana and the helicopter from a marijuana
operation at Casa Grande, Arizona that was under
Verdugo’s supervision. Leaders of the Caro-Quintero drug
enterprise attributed large losses of marijuana to Agent
Camarena.
Two days later, on February 7, Verdugo registered
at the Guadalajara Hyatt Regency. On the same day,
Camarena was kidnapped in Guadalajara and taken to
Caro-Quintero’s Lope de Vega compound in Guadalajara
where he was held captive and interrogated. Gomez-
Espana testified that Verdugo was at-Lope de Vega at the
-6a-
time Camarena was there. The witness also testified that
he had given Verdugo a ride from Caro’s compound to the
Hyatt hotel and observed that Verdugo looked tired.
During the ride, Verdugo remarked he had “taken care of
a problem" and, addressing his fellow passenger, added,
"Didn’t we, Commandante?"”
A forensics team found hair substantially like
Verdugo’s in the one-room house at Lope de Vega where
Camarena was most likely tortured and interrogated. This
building was small, dark, and dirty, and resembled a
prison, making it unlikely Verdugo would enter it for
innocent reasons. When Camarena mentioned Verdugo’s
name during the agent’s torture and interrogation, there
was a lengthy pause in the interrogation followed by
further questioning about Verdugo by a new interrogator.
A month or two after the abduction and murder of
Camarena, Verdugo was overheard referring to a “narc"
and “someone being beat to shit, and they were begging
and crying." Based on this evidence a rational juror
applying the reasonable doubt standard could find Verdugo
guilty as a principal or an aider and abettor of conspiracy
to kidnap, kidnapping, murder, and committing a violent
felony against Camarena in aid of racketeering activities.
Verdugo is also vicariously liable for the crimes of
his co-conspirators committed pursuant to and in
furtherance of the conspiracy. E.g., United States v.
Inafuku, 938 F.2d 972, 974 (9th Cir. 1991). Sufficient
evidence was adduced at the joint trial of Verdugo and
Lopez-Alvarez to sustain Lopez-Alvarez’s convictions for
kidnapping, murder, and committing a violent crime
against Camarena in aid of racketeering activity. Lopez-
Alvarez, 970 F.2d at 593. Because Verdugo was a co:
conspirator of Lopez-Alvarez, Lopez-Alvarez’s convictions
on these charges provide an independent basis for
affirming Verdugo’s convictions for the same offenses.
-Ja-
The remaining conviction is for commission of a
violent crime against Zavala in aid of racketeering activity.
We reversed Lopez-Alvarez’s conviction on this count for
lack of direct evidence that Lopez-Alvarez committed a
crime against Zavala. 970 F.2d at 593-94. The case
against Verdugo is similarly deficient. The transcripts of
Camarena’s interrogation contain nothing suggesting
Verdugo’s involvement in violent acts against Zavala.
Furthermore, Verdugo’s self-incriminating statements refer
to only a single violent episode. And while there may
have been reason for Verdugo to attack Zavala, the motive
is by no means as clear regarding Zavala as it is regarding
Camarena. As in Lopez-Alvarez, "the only evidence
supporting [Verdugo’s] conviction for violent crimes
against Zavala is that linking Zavala to the Camarena
affair.” Id, at 593. Accordingly, we reverse Verdugo’s
conviction under former section 1952B for committing a
violent act against Zavala in aid of racketeering activity.‘
IV. EVIDENTIARY RULINGS
The district court did not abuse its discretion by
excluding testimony that Espino-Verdin told Mexican
police that Verdugo was not present at Lope de Vega
during the interrogation of Camarena. The statement
failed to meet at least one of the requirements for
admitting an exculpatory hearsay statement under the
exception for statements against penal interest --
corroborating circumstances do not clearly indicate the
statement was trustworthy. See United States v.
Nazemian, 948 F.2d 522, 530 (9th Cir. 1991).
* Because Lopez-Alvarez was not convicted on this
count, we cannot hold Verdugo vicariously liable for the
kidnapping and murder of Zavala in aid of racketeering.
-8a-
In assessing the trustworthiness of hearsay, we
consider the time at which the declaration was made, the
party to whom it was made, the existence of corroborating
evidence, the extent to which the declaration is against the
declarant’s interest, and the availability of the declarant as
a witness. Jd, at 531. The trustworthiness of the hearsay
Statement is weakened by the fact that it was not
spontaneous and was taken while Espino was in the
custody of the Mexican Federal Judicial Police under
questioning regarding his role in the kidnapping and
torture of Camarena and Zavala. See, e.g., United States
v. Ospina, 739 F.2d 448, 452 (9th Cir. 1984): United
States v, Oropeza, 564 F.2d 316, 325 (9th Cir. 1977).
There was no evidence directly corroborating Espino’s
Statement, and the statement was contradicted by other
testimony placing Verdugo at Lope de Vega. The
statement is not strongly against Espino’s penal interest --
it added little to other evidence against Espino. Although
Espino was not available to testify, that circumstance alone
is not enough to render exclusion of the hearsay statement
an abuse of discretion.
We have reviewed the numerous other evidentiary
rulings to which Verdugo objected during the lengthy trial.
The government’s arguments in Support of these rulings
are persuasive (see Appellee’s Consolidated Brief at 44-58)
and we find no reversible error.
V. CONTINUANCE
Considering the relevant factors, we conclude the
district court cid not abuse its discretion in denying
Verdugo’s request for a continuance to interview Espino.
See United States v. Flynt, 756 F.2d 1352, 1359 (9th
Cir.), amended, 764 F.2d 675 (9th Cir. 1985). The
request was tardy and, as discussed above, the hearsay
relating to Espino’s statement was not reliable. The
-9a-
likelihood Verdugo could interview Espino was not great
(there was nothing to indicate either Mexican prison
authorities or Espino would cooperate and some indication
Espino would not); Espino was awaiting trial and had little
incentive to implicate himself to exculpate Verdugo; the
delay would have been substantial, and would have
inconvenienced government witnesses and the court.
Espino had been identified as Camarena’s main
interrogator, and in choosing between conflicting testimony
regarding Verdugo’s presence at Lope de Vega, the jury
would probably believe Gomez-Espana, a relatively
uninvolved witness who placed Verdugo at Lope de Vega,
rather than Espino, who reportedly said Verdugo was not
there. Nor did the trial court abuse its discretion in
denying motions for continuances to review Jencks Act
materials. Verdugo was provided these materials forty-
eight hours prior to the witnesses’ testimony. He fails to
state how he was prejudiced by this limitation, except to
refer to delay in the discovery of the Espino hearsay which
we consider immaterial.
VI. BRADY VIOLATIONS
Verdugo contends the government withheld or
belatedly produced the following evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963) : an additional
transcript of Camarena’s interrogation; tape recordings of
Caro-Quintero’s interrogation by MFJP officers; DEA
reports of interviews concerning Espino’s interrogation;
government reports that might have shown that Verdugo
was not the number two man in Caro’s enterprise; and
reports showing that Felix-Gallardo rather than Caro-
Quintero was responsible for Camarena’s abduction.
To prove a Brady violation, the defense must show
a failure to disclose "material" evidence which would have
created a reasonable probability that the result of trial
-10a-
would have been different. E.g., Uni -
Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1992). To avoid
a Brady violation, the government need only disclose the
evidence when it would still be of value to the defendant at
trial. United States v. Gordon, 844 F.2d 1397, 1403 (9th
Cir. 1988). Much of the evidence to which Verdugo
refers was disclosed during trial when Verdugo could still
use it. There is no reasonable probability earlier
disclosure would have changed the result.
Withholding a third copy of the transcript of
Camarena’s interrogation was harmless. The defense had
access to other recordings of the interrogation and Verdugo
provides no basis for his assertion that the third copy
"would show that it was not the Rafael Caro Quintero
narcotics organization which was responsible for the
kidnapping, but rather a Guadalajara narcotics cartel.”
Appellant’s Third Supplemental Reply Brief at 7.
Verdugo was advised about tapes of Caro-
Quintero’s interview in early May 1988 but failed to
request them until August. The district court allowed
Verdugo to recall Agent Castillo for cross-examination. In
any event, Verdugo does not indicate how the tapes would
exculpate him.
The government disclosed the reports of Espino’s
interrogation approximately two weeks into the two-month
long trial. The trial court offered to recall any government
witness to neutralize the possibility of prejudice from the
delay. Moreover, as previously noted, Espino’s hearsay
was contradicted by the testimony of one of Camarena’s
main interrogators, and it is improbable the jury would
have believed Espino.
The government was not required to prove
Verdugo’s exact position in the Caro-Quintero hierarchy.
Although the government relied upon evidence that
Verdugo was a leader in the Caro-Quintero drug operation
-|la-
as a circumstance lending support to an inference of
knowledge of various facts, his leadership role is not
denied and the inference did not depend upon the precise
place in the hierarchy Verdugo occupied. Reports
indicating Verdugo was not the number two man would not
have exculpated him or affected the result of the trial.
Similarly, reports that Felix-Gallardo was also involved in
the kidnapping would not have exculpated Verdugo. See
Lopez-Alvarez, 970 F.2d at 598 (rejecting similar Brady
claim by Verdugo’s co-defendant).
Verdugo’s request for access to presentence reports
was properly denied. See United States v. Chavez-
Vernaza, 844 F.2d 1368, 1375 (9th Cir. 1987) (“the
defendant is not entitled under Brady to inspect [the
presentence reports] himself").
VII. PROSECUTORIAL MISCONDUCT
Verdugo accuses the prosecution of inflammatory
comments, disparaging defense counsel, and vouching for
the credibility of witnesses. We rejected the same
contentions in the appeal by Verdugo’s co-defendant. See
Lopez-Alvarez, 970 F.2d at 597-98. There is no reason to
reach a different result here. Verdugo contends the
prosecution argued matters outside the record on a number
of occasions. In each instance the government’s argument
was based on fair inferences from the evidence.
Moreover, the trial court instructed the jury the statements
of counsel were not evidence. See id, at 598.
Ill. SEVERANCE
The charges against Verdugo were not misjoined
with charges against his co-defendants, Felix-Gutierrez and
Lopez-Alvarez. Felix-Gutierrez, 940 F.2d at 1208-09; see
also United States v, Vasquez-Velasco, 15 F.3d 833, 843-
44 (9th Cir. 1994). We have already upheld joinder of the
-12a-
charges of Verdugo’s less culpable co-defendant, Felix-
Gutierrez. See Felix-Gutierrez, 940 F.2d at 1209-10; see
also Vasquez-Velasco, 15 F.3d at 845-47.
IX. JURY INSTRUCTIONS
A. Theory of the Defense
The district court properly rejected Verdugo’s
request that the jury be instructed:
[uJnless you have been convinced beyond 2
reasonable doubt that Rene Verdugo went to
881 Lope de Vega to participate in the
interrogation of Enrique Camarena, you
must find him not guilty of all charges in the
indictment.
Since there was sufficient evidence Verdugo was a member
of the conspiracy to kidnap, interrogate, and murder
Camarena, the jury could have convicted Verdugo even if
he went to Lope de Vega for reasons other than to
interrogate Camarena.
B. Aiding and Abetting
Verdugo claims it was plain error for the trial court
not to read to the jury the last paragraph of Devitt &
Blackmar instruction 12.03 (3d ed. 1977), stating the jury
must find the underlying crime was committed to convict
on an aiding and abetting theory. The district court read
excerpts of the aiding and abetting statute, 18 U.S.C. § 2,
and a modified version of Devitt &Blackmar instruction
12.02, which stated:
Every person who thus willfully
participates in the commission of an offense
may be found to be guilty of that offense.
Participation is willful if done voluntarily
-13a-
and intentionally, and with the specific intent
to do something the law forbids, or with the
specific intent to fail to do something the
law requires to be done; that is to say, with
a purpose either to disobey or to disregard
the law.
This instruction fairly implied the crime must have been
committed by someone else and was therefore sufficient to
withstand a plain error challenge. See United States v.
Armstrong, 909 F.2d 1238, 1243-44 (9th Cir. 1990).
Furthermore, any deficiency in the instructions with
respect to aiding and abetting would not have affected
Verdugo’s substantial rights -- the jury could properly
convict Verdugo for participation in the conspiracy without
reference to aiding and abetting.
C. Eyewitness Identification
Calderon testified that sometime in 1982 he
witnessed a meeting in a National City restaurant between
Verdugo, Felix, and others, and that subsequently there
was an increase in the marijuana supply at the Fowlie
ranch. Verdugo asked that the jury be instructed in
accordance with Devitt & Blackmar instruction 15.19 (3d
ed. 1977) regarding the reliability of identification
testimony.
Rejection of the Devitt & Blackmar instruction was
not error. The instruction relates to eyewitnesses to a
crime and could have confused the jury. Verdugo does not
explain why the instructions actually given did not address
his concerns. See also Felix-Gutierrez, 940 F.2d at 1211
("the district court gave extensive and accurate instructions
regarding the credibility of witnesses").
™ a. co
-14a-
We have reviewed Verdugo’s other contentions and
find them without merit. The judgment of the district
court is affirmed in all respects except that one of
Verdugo’s two convictions under former section 1952B,
now 18 U.S.C. § 1959, is reversed.
AFFIRMED IN PART and REVERSED IN PART.
-1Sa-
U.S. v. Verdugo-Urquidez
No. 88-5462
filed June 22, 1994
REINHARDT, J., dissenting:
The trial in this case followed the infamous
international kidnappings of two Mexican citizens, Dr.
Humberto Alvarez-Machain and the defendant, Rene
Martin Verdugo-Urquidez, by United States government
agents. They were kidnapped because the Drug
Enforcement Agency suspected the two men of
participating in the brutal murder of DEA Agent Enrique
Camarena-Salazar in Guadalajara. Several years after the
kidnappings, United States District Court Judge Edward
Rafeedie dismissed all charges against Dr. Alvarez-
Machain due to insufficiency of the evidence. In my
opinion, the evidence against Verdugo is no more
inculpatory. Thus, it would seem, ironically, that in both
cases the government ultimately lacked the evidence
necessary to prove that the men it kidnapped were guilty. '
'/ Two other individuals involved in these events were
arrested within the United States and subsequently tried
and convicted. In United States v, Felix-Guitierrez, 940
F.2d 1200 (9th Cir. 1991), cert. denied, 113 S.Ct. 504
(1992), we affirmed the conviction of Jesus Felix-
Guitierrez for being an accessory after the fact in the
conspiracy to kidnap and murder Camarena. In United ~
States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir.), cert.
denied, 113 S.Ct. 504 (1992), we affirmed the conviction
of Lopez-Alvarez for violent crimes in aid of racketeering
for the kidnapping and murder of Camarena, conspiring to
kidnap a federal agent, kidnapping a federal agent, and
-16a-
Regrettably, the majority is unwilling to reverse
Verdugo’s conviction. Before explaining why a review of
the record demonstrates that the evidence is wholly
insufficient to support the verdicts, I am compelled to
comment on the majority’s equally unfortunate decision to
treat this important case in an unpublished memorandum
disposition. In my view, we clearly violate our rules by
doing so. 7 Regardless of whether we are violating our
rules, however, our failure to write and publish an opinion
here is significant for what it reveals about the current
State of our judicial system. My colleagues in the majority
are able, dedicated, and hard-working. The truth is,
however, that due to our overwhelming caseload we, as a
judiciary, simply lack the time to write opinions in cases in
which they are warranted. As a result, more and more of
our dispositions are issued in unpublished form. The
quality of these dispositions, and sometimes the quality of
the justice dispensed in them, leaves much to be desired.
felony-murder of a federal agent. _
*/ Ninth Cir. R. 36-2 provides for the publication of
dispositions of public importance as well as dispositions
after a remand by the Supreme Court. The rule applies to
dispositions that "[i]nvolve[]} a legal or factual issue of
unique interest or substantial public importance” or that are
issued "following a reversal or remand by the United
States Supreme Court.” This case Clearly meets both these
criteria.
*The majority gives short shrift to some of Verdugo’s
claims. The majority concludes its disposition without
addressing many of the 21 issues Verdugo raised on appeal
simply by noting, "[w]e have reviewed Verdugo’s other
-17a-
Even in the case at hand, **? Although none of this is
news to any of us, federal judges are unwilling to
acknowledge the need to increase our numbers
significantly. Too many of us simply like the status quo.
See er R. ance Too Few Judges, Too Many
, A.B.A. J.,
Jan. 1993, at 52. oe a result, we are, more and more
frequently, burying important cases like the one *efore us
in unpublished memorandum dispositions.
Turning to the case at hand, I dissent from the
majority’s holding in Part III that there is sufficient
evidence to support the convictions ‘of Verdugo for
conspiring to kidnap a federal agent, kidnapping a federal
agent, felony-murder of a federal agent, and committing
violent crimes in aid of racketeering activity.
The only concrete evidence that the government has
provided for the convictions is that Verdugo may have had
a motive to participate in the conspiracy and that on or
about the day of the murder he was present at the large
compound where Camarena was held captive. These facts
are insufficient to permit a reasonable juror to conclude
beyond a reasonable doubt that Verdugo participated in the
conspiracy to murder Camarena or committed any of the
other offenses of which he was convicted. |
In addition, the government relies on two other
categories of evidence to support the conviction. In each
case, however, the specific evidence is of little or no
probative value. First, the government urges that some
extremely vague comments made by Verdugo buttress its
contentions and find them without merit." Similarly, it
dismisses the "numerous other evidentiary rulings to which
Verdugo objected” merely by citing me government’s
brief.
-18a-
case. It argues that Verdugo’s statement that he had
"taken care of a problem” represents proof that he
participated in the murder of Camarena. The comment is
of little evidentiary worth because there is no evidence
Suggesting that the “problem” in question was Camarena.
In fact, the comment is not of much more relevance than
the observation, also relied upon by the government, that
Verdugo "looked tired.” There are clearly a large number
of possible explanations for Verdugo’s fatigue, and the
testimony contributes absolutely nothing to the
government's effort to prove beyond a reasonable doubt
that Verdugo was guilty of the crimes with which he was
charged. Similarly, the government's evidence concerning
Verdugo’s reference, months after the incident, to the
beating of a "narc” is of little probative worth. The
government offers no proof that Verdugo was relating an
incident that he personally witnessed or doing anything
more than referring to what was by then undoubtedly a
well-known story, at least in the circles in which Verdugo
seems to have operated.
The second category of evidence is physical
evidence. In truth, the government’s entire case with
respect to all of the counts hangs by a single hair. The
Prosecution tried to place Verdugo at the actual scene of
the crime by introducing evidence that a hair "substantially
like Verdugo’s" was in the room where Camarena "was
most likely tortured and interrogated” (emphasis added).
Surely the government’s discovery of a hair that resembles
Verdugo’s in a room where the government thinks the
crime took place cannot satisfy the rigorous standards of
proof that our system of justice imposes upon the
prosecution.
In my opinion, no reasonable juror could find that
the government’s evidence proves beyond a reasonable
doubt that Verdugo Participated in the crimes with which
-19a-
he is charged. Accordingly, I dissent from Part III of the
majority’s disposition. I would reverse Verdugo’s
convictions on the ground of insufficiency of the evidence.
-20a-
APPENDIX B
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) ;
) Filed August 5, 1994
Plaintiff-Appellee, ) No. 88-5462
)
v. ) D.C. No. 87-
) 422(A)-ER
)
RENE MARTIN VERDUGO-URQUIDEZ,) ORDER
)
Defendant-Appellant. )
)
)
Before: BROWNING, D.W. NELSON, and
REINHARDT, Circuit Judges
The memorandum disposition filed June 22.
1994 is amended as follows:
At page 11, line 4: replace "one of Camarena’s
main interrogators" with "Gomez-Espana.”"
A majority of the judges on the panel has voted to
deny the petition for rehearing. The panel has voted to
reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion
for an en banc rehearing, and no judge of the court has
requested a vote on the suggestion for rehearing en banc.
Fed. R. App. P. 35(b).
The petition for rehearing is denied and the
Suggestion for rehearing en banc is rejected.
-2la-
APPENDIX C
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
HONORABLE EDWARD RAFFEEDIE, JUDGE PRESIDING
No. CR 87-422 (A) -ER
UNITED STATES OF AMERICA, PLAINTIFF
vs.
JESUS FELIX-GUTIERREZ, RAUL LOPEZ-ALVAREZ,
RENE MARTIN VERDUGO-URQUIDEZ, ET AL.,
DEFENDANTS
REPORTER'S TRANSCRIPT OF PROCEEDINGS
Los Angeles, California
Monday, June 20, 1988
10:00 A.M.
Ce
-22a-
[18] THE COURT: The defendant Verdugo had filed a
motion to dismiss the indictment for violation of the
extradition treaty. The Court has read and considered this
motion very carefully, as well as the Opposition which has
been filed, and it is the Court’s understanding of the law
that there can only be one conclusion in this case, which
has been dictated by higher authority, and that is that this
motion must be denied for the following reasons.
First, | would like to note that the government's
novel and unsupported contention that the defendant’s
seizure is not properly before the court is without merit.
Mr. Verdugo would not have been available for trial in
this case but for his seizure in Mexico. Thus the legality
of his seizure is clearly at issue here.
Despite the protest filed by the Mexican
government, the defendant’s standing to raise an objection
to a purported violation of the extradition treaty is not
beyond doubt. Read literally the case of United States vs.
Mann indicates that only the Mexican government has
Standing to raise a violation of the extradition treaty.
However, the Mann case should be read in accord with the
Second [19] Circuit's view that a protest by the offended
government gives the individual a right to raise an alleged
violation of an extradition treaty.
Our Supreme Court held in Ker vs. Illinois--and
that case is right on point--that an abduction does not
violate an extradition treaty.
The Second Circuit's decision in United States vs.
Sobell similarly held that the abduction of a criminal
defendant does not violate the extradition treaty.
Defendant's quotation of selected portions of the
extradition treaty does not suggest that the Second Circuit
has erred in its interpretation of the treaty. Rather, the
selection quoted merely confirmed the view that the treaty
deals solely with the obligation of the Signatory when a
-23a-
request for extradition under the treaty is made or granted.
Defendant's argument that the principle of specialty
should apply in this case, since it would have applied if the
defendant had in fact been extradited is meritless. As the
Second Circuit pointed out in the Fiocconi case, "a
defendant's right to invoke the principle of specialty is
intended to preserve the United States from a breach of
faith toward another country." When the United States has
acted unilaterally as permitted by the extradition treaty, the
concern enunciated in the Fiocconi [20] case is not
applicable.
Finally, the defendant’s statement that the American
executive has no power to extradite except as permitted by
treaty or act of Congress appears to be simply beside the
point in this case.
This motion should be denied, and that would be
the intention of the Court.
Do you wish to be heard?
MR. PANCER: Your Honor, the ruling ‘and the
government's papers adopt a position that the extradition
treaty doesn’t apply because there was no request made for
extradition. I don’t know that to be a fact, and I guess
what I think should happen is that the government should
represent that they had no talks--our government had no
talks with officials of the Republic of Mexico concerning
the extradition of Mr. Verdugo because based on the
Court's ruling and based on the cases, a different decision
may be necessary if the government did explore---
THE COURT: Why would it be different if the
government had explored it?
MR. PANCER: Because their argument is that
there was no extradition because we didn’t attempt to
extradite Mr. Verdugo. We just kidnapped him.
THE COURT: Well, disregard that. Suppose the
government did try and failed, and then the man was
-24a-
abducted, [21] as he was in this case. Would that change
anything that I have just said regarding the Ker vs. Iilinois
case?
MR. PANCER: Well, our argument would be
then, Your Honor, that because the law of extradition--if
the government tried to avail itself of that law, that they
must at least then be bound by the law as they at least first
tried to use it.
THE COURT: How does that give the defendant
any greater standing, which is the main flaw here, to raise
an objection to purported violation of the extradition
treaty?
MR. PANCER: Well, I know the Court disagrees
with our position, but it is our position that that didn’t
apply once the government of Mexico objected.
[ am not just here arguing that Rene Verdugo
objects. I am here relying on the fact that the government
of Mexico objects, and if we are going to be a nation of
laws, the only way we can do that is for the Court to make
the United States government follow those laws.
And that is why I am saying that that is our
position, Your Honor, concerning standing, that the
government must be forced to obey all the laws, including _
the extradition laws.
THE COURT: Your position is contrary to that of
the Supreme Court, and I am obliged to follow their view
[22] on it as I see it.
MR. PANCER: I understand, Your Honor.
THE COURT: The motion is denied.
« « Saal -
——s
ee Cent oe
-25a-
APPENDIX D
The Treaty on Extradition, May 4, 1978, United
States-Mexico, 31 U.S.T. 5059, T.I.A.S. No. 9656,
provides:
EXTRADITION TREATY BETWEEN
THE UNITED STATES OF AMERICA AND
THE UNITED MEXICAN STATES
The Government of the United States of America
and the Government of the United Mexican States:
Desiring to cooperate more closely in the fight
against crime and, to this end, to mutually render better
assistance in matters of extradition;
Have agreed as follows:
ARTICLE |
Obligation to Extradite
1. The Contracting Parties agree to mutually
extradite, subject to the provisions of this Treaty, persons
who the competent authorities of the requesting Party have
charged with an offense or have found guilty of
committing an offense, or are wanted by said authorities to
complete a judicially pronounced penalty of deprivation of
liberty for an offense committed within the territory of the
requesting Party.
2. For an offense committed outside the territory
of the requesting Party, the requested Party shall grant
extradition if: ;
a) its laws would provide for the punishment of
such an offense committed in similar
circumstances, or
b) the person sought is a national of the
requesting Party, and that Party has
-26a-
jurisdiction under its own laws to try that
person.
ARTICLE 2
Extraditable Offenses
1. Extradition shall take place, subject to this
Treaty, for willful acts which fall within any of the clauses
of the Appendix and are punishable in accordance with the
laws of both Contracting Parties by deprivation of liberty
the maximum of which shall not be less than one year.
2. If extradition is requested for the execution of a
sentence, there shall be the additional requirement that the
part of the sentence remaining to be served shall not be
less than six months.
3. Extradition shall also be granted for willful acts
which, although not being included in the Appendix, are
punishable, in accordance with the federal laws of both
Contracting Parties, by a deprivation of liberty the
maximum of which shall not be less than one year.
4. Subject to the conditions established in
paragraphs 1, 2 and 3, extradition shall also be granted:
a) For the attempt to commit an offense;
conspiracy to commit an offense; or the
Participation in the execution of an offense;
or
b) When, for the purpose of granting
jurisdiction to the United States government,
transportation of persons or property, the
use of the mail or other means of carrying
out interstate or foreign commerce, is also
an element of the offense.
ARTICLE 3
Evidence Required
Extradition shall be granted only if the evidence be
-27a-
found sufficient, according to the laws of the requested
Party, either to justify the committal for trial of the person
sought if the offense of which he has been accused had
been committed in that place or to prove that he is the
person convicted by the courts of the requesting Party.
ARTICLE 4
Territorial Application
1. For the purposes of this Treaty, the territory of
a Contracting Party shall include all the territory under the
jurisdiction of that contracting Party, including airspace
and territorial waters and vessels and aircraft registered in
that Contracting Party if any such aircraft is in flight when
the offense is committed.
2. For the purposes of this Treaty, an aircraft shall
be considered to be in flight at any time from the moment
when all its external doors are closed following the
embarkation until the moment when any such door is
opened for disembarkation.
ARTICLE 5
Political and Military Offenses
1. Extradition shall not be granted when the
offense for which is it requested is political or of a
political character.
If any question arises as to the application of the
foregoing paragraph, the Executive authority of the
requested Party shall decide. ‘
2. For the purpose of this Treaty, the following
offenses shall not be considered to be offenses included in
paragraph 1:
a) The murder or other willful crime against
the life or physical integrity of a Head of
State or Head of Government or of his
-28a-
family, including attempts to commit such
an offense.
b) An offense which the Contracting Parties
may have the obligation to prosecute by
reason of a multilateral international
agreement.
3. Extradition shall not be granted when the
offense for which extradition is requested is a purely
military offense.
ARTICLE 6
Non bis in idem
Extradition shall not be granted when the person
sought has been prosecuted or has been tried and convicted
or acquitted by the requested Party for the offense for
which extradition is requested.
ARTICLE 7
; Lapse of Time
Extradition shall not be granted when the
prosecution or the enforcement of the penalty for the
offense for which extradition has been sought has become
barred by lapse of time according to the laws of the
requesting or requested Party.
ARTICLE 8
Capital Punishment
When the offense for which extradition is requested
is punishable by death under the laws of the requesting
Party and the laws of the requested Party do not permit
such punishment for that offense, extradition may be
refused unless the requesting Party furnishes such
assurances as the requested Party considers sufficient that
the death penalty shall not be imposed, or, if imposed,
shall not be executed.
-29a-
ARTICLE 9
Extradition of Nationals
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.
ARTICLE 10
Extradition Procedures and Required Documents
1. The request for extradition shall be made
through the diplomatic channel.
2. The request for extradition shall contain the
description of the offense for which extradition is required
and shall be accompanied by:
a) A statement of the facts of the case;
b) The text of the legal provisions describing
the essential elements of the offense;
c) The text of the legal provisions describing
the punishment for the offense;
d) The text of the legal provisions relating to
the time limit on the prosecution or the
execution of the punishment of the offense;
d) The facts and personal information of the
person sought which will permit his
identification and, where possible,
information concerning his location.
3. In addition, when the request for extradition
relates to a person who has not yet been convicted, it shall
be accompanied by:
-30a-
a) A certified copy of the warrant of arrest
issued by a judge or other judicial officer of
the requesting Party;
b) Evidence which, in accordance with the laws
of the requested Party, would justify the
apprehension and commitment for trial of
the person sought if the offense had been
committed there.
4. When the request for extradition relates to a
convicted person, it shall be accompanied by a certified
copy of the judgment of conviction imposed by a court of
the requesting Party.
If the person was found guilty but not sentenced,
the extradition request shall be accompanied by a
certification to that effect and a certified copy of the
warrant of arrest.
If such person has already been sentenced, the
request for extradition shall be accompanied bya
certification of the sentence imposed and a statement
indicating which part of the sentence has not been carried
out.
5. All the documents that must be presented by the
requesting Party in accordance with the provisions of this
Treaty shall be accompanied by a translation in the
language of the requested Party.
6. The documents which, according to this Article,
shall accompany the request for extradition, shall be
received in evidence when:
a) In the case of a request emanating from the
United States, they are authenticated by the
official seal of the Department of State and
legalized by the manner prescribed by the
Mexican law;
b) In the case of a request emanating from the
United Mexican States, they are certified by
-3la-
the principle diplomatic or consular officer
of the United States in Mexico.
ARTICLE 11
Provisional Arrest
1. In the case of urgency, either Contracting Party
may request, through the diplomatic channel, the
provisional arrest of an accused or convicted person. The
application shall contain a description of the offense for
which the extradition is requested, a description of the
person sought and his whereabouts, an undertaking to
formalize the request for extradition, and a declaration of
the existence of a warrant of arrest issued by a competent
judicial authority or a judgment of conviction issued
against the person sought.
2. On receipt of such a request, the requested
Party shall take the necessary steps to secure the arrest of
the person claimed.
3. Provisional arrest shall be terminated if, within
a period of 60 days after the apprehension of the person
claimed, the executive authority of the requested Party has
not received the formal request for extradition and the
documents mentioned in Article 10.
4. The fact that the provisional arrest is terminated
pursuant to paragraph 3 shall not prejudice the extradition
of the person sought if the request for extradition and the
necessary documents mentioned in Article 10 are delivered
at a later date.
ARTICLE 12
Additional Evidence
If the Executive authority of the requested Party
considers that the evidence furnished in support of the
request for extradition is not sufficient in order to fulfill
the requirements of this Treaty, that Party shall request the
-32a-
presentation of the necessary additional evidence.
ARTICLE 13
Procedure
1. The request for extradition shall be Processed in
accordance with the legislation of the requested Party.
2. The requested Party shall make all arrangements
necessary for internal procedures arising out of the request
for extradition.
3. The competent legal authorities of the requested
Party shall be authorized to employ all legal means within
their power to obtain from the judicial authorities the
decisions necessary for the resolution of the request for
extradition.
ARTICLE 14
Decision and Surrender
1. The requested Party shall promptly
communicate to the requesting Party its decision on the
request for extradition.
2. In the case of complete or partial rejection of a
request for extradition, the requested Party shall give the
reasons on which it was based.
3. If the extradition is granted, the surrender of the
person sought shall take place within such time as may be
prescribed by the laws of the requested Party. The
competent authorities of the Contracting Parties shall agree
on the date and place of the surrender of the person
sought.
4. If the competent authority has issued the
warrant or order for the extradition of the Person sought
and he is not removed from the territory of the requested
Party within the prescribed period, he shall be set at
liberty and the requested Party may Subsequently refuse to
extradite him for the same offense.
-33a-
ARTICLE 15
Delayed Surrender
The requested Party, after granting the extradition,
may defer the surrender of the person sought when that
person is being proceeded against or is serving a sentence
in the territory of the requested Party for a different
offense, until the conclusion of the proceeding or the full
execution of the punishment that has been imposed.
ARTICLE 17
Rule of Specialty
1. A person extradited under the present Treaty
shall not be detained, tried or punished in the territory of
the requesting Party for an offense other than that for
which extradition has been granted nor be extradited by
that Party to a third State unless:
a) He has left the territory of the requesting
Party after his extradition and has
voluntarily returned to it;
b) He has not left the territory of the requesting
Party within 60 days after being free to do
sO; OF
c) The requested Party has given its consent to
his detention, trial, punishment or
extradition to a third State for an offense
other than that for which the extradition was
granted.
These stipulations shall not apply to offenses
committed after the extradition.
2. If, in the course of the procedure, the
classification of the offense is changed for which the
person requested was extradited, he shall be tried and
sentenced on the condition that the offerise, in its new legal
form:
a) Is based on the same group of facts
Se
-34a-
established in the request for extradition and
in the documents presented in its support;
and
b) Is punishable with the same maximum
sentence as the crime for which he was
extradited or with a lesser sentence.
ARTICLE i8
Summary Extradition
If the person sought informs the competent
authorities of the requested Party that he agrees to be
extradited, that Party may grant his extradition without
| further proceedings, and shall take all measures permitted
under its laws to expedite the extradition. In such cases
Article 17 shall not be applicable.
ARTICLE 19
Surrender of Property
1. To the extent permitted under the law of the
requested Party and subject to the rights of third parties,
which shall be duly respected, all articles, instruments,
objects of value or documents relating to the offense,
whether or not used for its execution, or which in any
other manner may be material evidence for the
Prosecution, shall be surrendered upon the granting of the
extradition even when extradition cannot be effected due to
the death, disappearance, or escape of the accused.
2. The requested Party may condition the
surrender of articles upon a Satisfactory assurance from the
requesting Party that the articles will be returned to the
requested Party as soon as possible.
ARTICLE 20
Transit
1. The right to transport through the territory of
-35a-
one of the Contracting Parties a person who is not a
national of that Contracting Party surrendered to the other
Contracting Party by at third State shall be granted on
presentation made through the diplomatic channel of a
certified copy of the decision on extradition, provided that
reasons of public order are not opposed to the transit.
> The authorities of the transit State shall be in
charge of the custody of the extradited person while that
person is in its territory.
3. The Party to which the person has been
extradited shall reimburse the State through whose territory
such person is transported for any expenses incurred by the
latter in connection with such transportation.
ARTICLE 21
Expenses
The requested Party shall bear the expenses of the
arrangements referred to in Article 13, with the exception
that the expenses incurred for the translation of documents
and, if applicable, for the transportation of the person
ordered extradited shall be paid by the requesting Party.
ARTICLE 22
Scope of Application
1. This Treaty shall apply to offenses specified in
Article 2 committed before and after this Treaty enters into
force.
2. 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 February, 1899, [' ] and the Additional Conventions on
1 TS 242; 31 Stat. 1818.
-36a-
Extradition of 25 June 1902, [? ] 23 December 1925, [? ]
and 16 August 1939. [* ]
ARTICLE 23
Ratification, Entry into Force, Denunciation
1. This Treaty shali be subject to ratification; the
exchange of instruments of ratification shall take place in
Washington as soon as possible.
2. This Treaty shall enter into force on the date of
exchange of the instruments of ratification.
3. On entry into force of this Treaty, the Treaty of
Extradition of 22 February 1899 and the Additional
Conventions on Extradition of 25 June 1902, 23 December
1925 and 16 August 1939 between the United States of
America and the United Mexican States, shall cease to
have effect without prejudice to the provisions of Article
22.
4. Either Contracting Party may terminate this
Treaty by giving notice to the other Party. The
termination shall take effect six months after the receipt of
such notice.
Done in two originals, in the English and Spanish
languages, both equally authentic, at Mexico City this
fourth day of May, one thousand nine hundred seventy-
eight.
? TS 421; 9 Bevrans 918.
> TS 741: 44 Stat. 2409.
* TS 967: 55 Stat. 1183.
-37a-
/S/_ — Cyrus Vance [* ]
For the Government of the
United States of America
IS/ S. Roel [J
For the Government of the
United Mexican States
' Cyrus Vance.
2S. Roel.
(ica
13.
-38a-
APPENDIX
Murder or manslaughter; abortion.
Malicious wounding or injury.
Abandonment of minors or other dependents when
there is danger of injury or death.
Kidnapping; child stealing; abduction: false
imprisonment.
Rape; statutory rape; indecent assault; corruption of
minors, including unlawful sexual acts with or upon
children under the age of consent.
Procuration; promoting or facilitating prostitution.
Robbery; burglary; larceny.
Fraud.
Embezzlement.
An offense against the laws relating to
counterfeiting and forgery.
Extortion.
Receiving or transporting any money, valuable
securities, or other property knowing the same to
have been unlawfully obtained.
Arson; malicious injury to property.
14.
15.
16.
17.
18.
19.
20.
21.
22.
-39a-
Offenses against the laws relating to the traffic in,
possession, production, manufacture, importation or
exportation of dangerous drugs and chemicals,
including narcotic drugs, cannabis, psychotropic
drugs, opium, cocaine, or their derivatives.
Offenses against the laws relating to the control of
poisonous chemicals or substances injurious to
health.
Piracy.
Offenses against the safety or means of
transportation including any act that would
endanger a person in a means of transportation.
An offense relating to unlawful seizure or exercise
of control of trains, aircraft, vessels, or other
means of transportation.
Offenses against the laws relating to prohibited
weapons, and the control of firearms, ammunition,
explosives, incendiary devices or nuclear materiais.
An offense against the laws relating to international
trade and transfers of funds or valuable metals.
An offense against the laws relating to the
importation, exportation, or international transit of
goods, articles, or merchandise, including historical
or archaeological items.
Violations of the customs laws.
23.
24.
a.
26.
27.
28.
29.
30.
31.
-40a-
Offenses against the laws relating to the control of
companies, banking institutions, or other
corporations.
Offenses against the laws relating to the sale of
securities, including stocks, bonds and instruments
of credit.
Offenses against the laws relating to bankruptcy or
rehabilitation of a corporation.
Offenses against the laws relating to prohibition of
monopoly or unfair transactions.
Offenses against the laws relating to protection of
industrial property or copyright.
Offenses against the laws relating to abuse of
official authority.
Bribery, including soliciting, offering and accepting
bribes.
Perjury; false statements to any governmental
authority. Subornation of perjury or false
Statements.
Offenses against the laws relating to obstruction of
justice, including harboring criminals and
suppressing evidence.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.