Opinion
Case No: 09-70576 SBA MISC Dkt. 19
10-28-2011
IN THE MATTER OF THE EXTRADITION OF ALFONSO EUSTOLIO GONZALEZ GONZALEZ
ORDER DENYING DEFENDANT'S
MOTION TO DISMISS
The Government has filed a complaint against Alfonso Eutolio Gonzalez Gonzalez ("Defendant") seeking his extradition to Mexico. The parties are presently before the Court on Defendant's motion to dismiss the complaint. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES Defendant's motion. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Civ. L.R. 7-1(b); Crim. L.R. 2-1.
I. BACKGROUND
A. FACTUAL SUMMARY
Defendant, a citizen of Mexico, has been a legal permanent resident of the United States since approximately 2004. Matthews Decl. ¶ 2, Dkt. 19-1. Since then, he has lived openly in California, and currently resides in the City of Hayward. Id. ¶ 3. The Hayward address appears on his identification card, and he has received paychecks and various bank and government records there as well. Id. Although Defendant lives in the United States, he also maintains a residence in Michoacan, Mexico.
On the morning of March 6, 2006, the Defendant's nephew, Reynaldo Silva Vazquez ("Reynaldo") stopped by Defendant's home on his way to work. Hill Decl. Ex. 1 at 10, Dkt. 22. Defendant accused Reynaldo of having damaged some concrete in the front of his home. Id. Later in the day, Reynaldo and his brother, Lorenzo Silva Vazquez ("Lorenzo"), returned to Defendant's home to speak with him. Id. at 11. Reynaldo denied that he was responsible for the damage to Defendant's property. Id. at 10. In turn, Defendant went into his house and then re-emerged with a rifle and shot at Reynaldo and Lorenzo. Id. Reynaldo was struck and suffered injuries to his mid-section and right forearm. Hill Decl. Ex. 2 at 7-8. Lorenzo was not shot, however. Id. at 7.
Based on eyewitness accounts, Mexican authorities issued an arrest warrant on April 7, 2006 for Defendant for attempted homicide. Id. at 1, 7-9. Both Reynaldo and Lorenzo later identified Defendant in a photo lineup. Hill Decl. Ex. 3 at 1-2. Although Defendant returned to Mexico at least two times after he allegedly shot his nephew—once in 2008 and once in April 2009—he was never notified that a warrant for his arrest had been issued. Matthews Decl. ¶ 4.
B. PROCEDURAL HISTORY
Subsequently, Mexico's ambassador to the United States requested the Government's formal assistance in extraditing the Defendant to Mexico. Hill Decl. Ex. 4. On June 26, 2009, the Government filed a complaint for the provisional arrest of Defendant for his extradition, see Compl., Dkt. 1, and a warrant for provisional arrest, see Hill Decl. Ex. 5 at 4. Defendant was taken into custody, but later was released on bond. Dkt. 3, 13.
Defendant has now filed a motion to dismiss the complaint. See Mot. Dismiss, Dkt. 19. He alleges that the lapse of time between the underlying charge and the date of the complaint violates the Sixth Amendment's speedy trial clause. The Government opposes the motion and counters that the right to a speedy trial under the Sixth Amendment does not apply to extradition requests. The Government alternatively argues that even if it did, the Defendant has not demonstrated the requisite prejudice to succeed on a speedy trial claim. The matter has been fully briefed and is ripe for adjudication.
The Sixth Amendment directs, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]"
II. DISCUSSION
"[I]t has long been settled that United States due process rights cannot be extended extraterritorially." Kamrin v. United States, 725 F.2d 1225, 1228 (9th Cir. 1984) (citing Neely v. Henkel, 180 U.S. 109 (1901)). In other words, "the Constitution does not of its own force impose on foreign governments the obligation to act speedily in seeking extradition of a fugitive from the United States." See In re Extradition of Kraiselburd, 786 F.2d 1395, 1398 (9th Cir. 1986). That notwithstanding, the right to a speedy trial may extend to a foreign national where "provided for by treaty." See Neely, 180 U.S. at 123; Kamrin, 725 F.2d at 1228. Here, Defendant relies on the extradition treaty between the United States and Mexico. See Extradition Treaty, U.S.-Mex., art. 7, May 4, 1978, 31 U.S.T. 5059 (hereinafter "U.S.-Mexico Treaty"). Article Seven of the U.S.-Mexico treaty provides that "[e]xtradition 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." Id. (emphasis added).
The Ninth Circuit has not specifically addressed whether the "lapse of time" provision in the U.S-Mexico Treaty encompasses the Sixth Amendment's speedy trial clause. This Circuit has held, however, that the reference to "lapse of time" in Article Seven means the statutes of limitations in the United States and Mexico—as opposed to the speedy trial clause. See Causbie Gullers v. Bejarano, 293 F. App'x 488, 489 (9th Cir. 2008) ("[f]or [the defendant] to be extraditable, the prosecution against her must fall within the statute of limitations according to the laws of both the 'requesting party,' i.e., Mexico, and the 'requested party,' i.e., the United States."); Clarey v. Gregg, 138 F.3d 764, 766 (9th Cir. 1998) (interpreting "lapse of time" to refer to the statute of limitations for the offense). Notably, the Eleventh Circuit applied this reasoning in holding that the "lapse of time" provision contained in the United States extradition treaty with the Commonwealth of the Bahamas as referring to "the running of a statute of limitations and not to a defendant's Sixth Amendment right to a speedy trial." Yapp v. Reno, 26 F.3d 1562, 1568 (11th Cir. 1994) (emphasis added); accord United States v. Garfias, No. CR-09-xr-90128 EMC, 2009 WL 2580641, at *3 (N.D. Cal. Aug. 20, 2009) (ruling that Article Seven of the U.S.Mexico Treaty does not incorporate the Sixth Amendment's speedy trial clause); see also In re Extradition of Burt, 737 F.2d 1477, 1486 (7th Cir. 1984); Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978); Jhirad v. Ferrandina, 536 F.2d 478, 485 n.9 (2d Cir. 1976).
Moreover, the Ninth Circuit has rejected analogous attempts to incorporate constitutional protections into other extradition treaty provisions. For example, in Kamrin, the petitioner, a United States citizen, challenged his extradition to Australia on the ground that the United States' statute of limitations would bar his prosecution for criminal acts committed in Australia. The Ninth Circuit held that the petitioner was not entitled to invoke constitutional protections afforded to defendants in American criminal proceedings, despite a provision in the treaty between the U.S. and Australia which provided that "the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by [the law of the requested state]." Kamrin, 725 F.2d at 1227-28. In so holding, the court relied on the principal that "United States due process rights cannot be extended extraterritorially." Id. at 1228 (citing Neely, 180 U.S. at 122-23). The court reached the same result in Kraiselburd when interpreting the "remedies and recourses" provision in the treaty between the United States and Argentina. See 786 F.2d at 1398 ("Kamrin . . . compels us to reject Kraiselburd's contention that the Treaty provision on which he relies entitles him to additional protections [beyond the applicable statute of limitations] under the Constitution."). Thus, the Court finds that the reasoning in Kamrin and Kraiselburd further supports the conclusion that the lapse of time provision in the U.S.-Mexico Treaty does not incorporate the Sixth Amendment's right to a speedy trial.
The sole authority cited by Defendant in support of his motion is In re Extradition of Mylonas, 187 F. Supp. 716 (N.D. Ala. 1960), a fifty-one year old district court decision from the Northern District of Alabama, which found that the speedy trial clause applies to extradition proceedings. In Mylonas, the court interpreted a provision in the extradition treaty between the United States and Greece that exempted extradition for "lapse of time or other lawful cause." 187 F. Supp. at 721. The court concluded that in light of advancements in communication technology, Greece could not justify waiting three years before taking steps to apprehend the defendant "when, at all times intervening, his whereabouts was fully known to the prosecuting authorities of Greece." Id.
Mylonass is not binding on this Court nor is it persuasive authority. As an initial matter, the Eleventh Circuit has overruled Mylonas on two separate occasions. See Yapp, 26 F.3d at 1567 ("Whether the holding in Mylonas is construed as interpretation of the Constitution or interpretation of a treaty, we do not find it persuasive."); Martin v. Warden, Atl. Pen, 993 F.2d 824, 829 n.8 (11th Cir. 1993) ("We expressly disapprove of the [Mylonas] court's holding that a defendant has a Sixth Amendment right to a 'speedy extradition.'"). But even if Mylonas were good law, the case is distinguishable on its facts. In that case, the district court predicated its decision on the fact that Greece knew the whereabouts of the defendant at all times. In contrast, Defendant has made no showing that the authorities in Michoacan knew that he was living in California after the warrant for his arrest was issued. Although Defendant asserts that he has "lived openly" in the Bay Area since 2004, Def.'s Mot. to Dismiss at 2, that does not establish that his whereabouts were "fully known" to the authorities in Michoacan "at all times intervening," see Mylonas, 187 F. Supp. at 721. The Court therefore finds Defendant's reliance on Mylonas misplaced.
In light of the Court's conclusion that the speedy trial clause does not apply to this proceeding, the Court need not address Defendant's alternative arguments under the balancing test set forth in Doggett v. United States, 505 U.S. 647, 651 (1992) which applies to speedy trial violations.
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IV. CONCLUSION
For the reasons stated above, the Court concludes that the Article Seven of the U.S.-Mexico Treaty does not incorporate the Sixth Amendment's right to a speedy trial. Accordingly,
IT IS HEREBY ORDERED THAT Defendant's motion to dismiss is DENIED. This Order terminates Docket 19.
IT IS SO ORDERED.
SAUNDRA BROWN ARMSTRONG
United States District Judge