Opinion
Case No. 10-MJ-2016-JMA
02-09-2011
In the Matter of the Extradition of EFRAIN FLORES ORTIZ, a/k/a Efrain Efren Flores Ortiz
ORDER GRANTING REQUEST FOR EXTRADITION AND CERTIFICATION OF EXTRADITABILITY
This is a proceeding under 18 U.S.C. § 3184 pursuant to a request by the United Mexican States (hereafter "Mexico") through the United States Government (hereafter "the Government") for the extradition from the United States to Mexico of Efrain Flores Ortiz a/k/a Efrain Efren Flores Ortiz (hereafter "Flores Ortiz") under the provisions of the Extradition Treaty Between the United States of America and Mexico, May 4, 1978 (hereafter "Treaty").
For the reasons set forth below, the Court GRANTS the request for extradition and CERTIFIES Flores Ortiz as extraditable.
I. Background
A. Procedural History
On June 18, 2010, the Government filed a Complaint for Provisional Arrest with a View Towards Extradition against Flores Ortiz on behalf of Mexico. [Doc. 1.] Magistrate Judge Louisa S. Porter issued an arrest warrant for Flores Ortiz that same day. [Doc. 3.] The warrant was executed on July 6, 2010, and Flores Ortiz made his initial appearance in this matter on July 7, 2010. [Docs. 4, 5.]
On September 2, 2010, Mexico formally requested the extradition of Flores Ortiz by submitting Diplomatic Note No. 05434 to the Secretary of State of the United States. [Doc. 12 at pp. 6-11.] Mexico seeks to extradite Flores Ortiz to answer a charge of Aggravated Homicide Committed with Unfair Advantage pursuant to an arrest warrant issued by the Judge of First Instance for Civil and Criminal Matters of the Judicial District of Silacayoapam, Oaxaca, on October 4, 2007. See Diplomatic Note 05434 at 1 [Doc. 12 at p. 6].
The charge pending against Flores Ortiz in Mexico is referred to interchangeably within the record as aggravated homicide committed with "unfair advantage," "undue advantage," and "unfair surprise." For purposes of consistency, the Court shall use "unfair advantage" to refer to the charge as the translations of the subject Oaxacan criminal statute and arrest warrant utilize this term.
This Court held a bond hearing on September 7, 2010, at which Flores Ortiz's request for bail was denied. [Doc. 7.] The Court conducted status hearings on September 21, 2010 and September 30, 2010. [Docs. 9, 10.] On September 30, 2010, the Court again denied bail, issued a briefing schedule on the extradition proceedings, and scheduled an extradition hearing for December 13, 2010. [Doc. 10.]
The Government filed the Request for Extradition and a State Department Declaration (hereafter "Blane Decl.") on September 30, 2010. [Docs. 12, 13.] The Government then filed a Supplemental Document in Support of Extradition Request and a Supplemental State Department Declaration (hereafter "Supp. Blane Decl.") on October 7, 2010. [Docs. 15, 16.] The Government filed a Memorandum of Law in Support of Mexico's Request for Extradition on October 8, 2010. [Doc. 14.]
On November 18, 2010, the Court held a status hearing because Flores Ortiz had not timely filed an opposition to the extradition request. The Court granted Flores Ortiz's request for an extension of time to file an opposition, and rescheduled the extradition hearing for January 26, 2011. [Doc. 18.] On December 20, 2010, Flores Ortiz filed an opposition to the extradition request. [Doc. 20.] The Government filed its Reply on December 27, 2010. [Doc. 22.] The Court held a status hearing on December 28, 2010, at which time it granted the Government's oral motion to reschedule the extradition hearing due to a calendar conflict, and rescheduled the hearing for January 19, 2011. [Doc. 24.] The Court presided over the extradition hearing on January 19, 2011, during which it denied Flores Ortiz's oral motion to stay the proceedings. [Doc. 29; see also Transcript of Extradition Hearing, Jan. 19, 2011 (hereafter "Tr."), 6:15-7:8.] B. The Request for Extradition
The due date of Flores Ortiz's opposition, at that time, was November 8, 2010.
The due date of Flores Ortiz's opposition by virtue of the extension granted by the Court at the November 18, 2010 status conference was December 15, 2010. The Court addressed the subject of Respondent's tardy filing during the status hearing held on December 28, 2010.
Mexico seeks to extradite Flores Ortiz to answer the charge of Aggravated Homicide Committed with Unfair Advantage of Celerino Adan Ortiz Vivar on July 31, 2007, in violation of Articles 285, 291, 299, and 301 of the Criminal Code of the Free and Sovereign State of Oaxaca ("Oaxaca Criminal Code"). Diplomatic Note 05434 [Doc. 12 at p. 6].
The evidence submitted in support of the extradition request is comprised of the following, all of which was certified and authenticated on August 27, 2010 by Edward McKeon, Minister Counselor for Consular Affairs of the United States:
(A) Sworn statement by Graciela Lopez Cruz, Federal Public Prosecutor assigned to the General Directorate for Extraditions and Legal Assistance of the Mexican Federal Attorney General's Office, dated August 13, 2010 (hereafter "Lopez Cruz Decl."), and the following twelve exhibits:
(1) Text of the articles of the Oaxaca Criminal Code related to the crime of Aggravated Homicide and to the applicable statute of limitations;
(2) Proceedings for the transfer, inspection, description, and removal of the body of a male corpse on July 31, 2007;
(3) Legal recognition of the corpse by Florencia Catalina Camacena on July 31, 2007 (identifying the body as that of her husband, Celerino
Lopez Cruz Decl. & Exs. 1-12 [Doc. 13 at pp. 5-80].Adan Ortiz Vivar);
(4) Death certificate for Celerino Adan Ortiz Vivar dated August 1, 2007, listing date of death as July 31, 2007 and cause of death as trauma caused by a projectile shot from a firearm;
(5) Statement given by Alejandro Ortiz Camacena (decedent's son) to Juan Morales Maldonado, Agent of the Public Prosecutor, on August 28, 2007;
(6) Statement given by Diego Armando Camacena Pizarro (decedent's nephew) to Juan Morales Maldonado, Agent of the Public Prosecutor, on August 28, 2007;
(7) Autopsy report dated July 31, 2007;
(8) Arrest warrant dated October 4, 2007, issued by the Judge for Civil and Criminal Matters of the Judicial District of Silacayoapam, Oaxaca ("Oaxaca Judicial District");
(9) March 10, 2009 finding by the Oaxaca Judicial District that the October 4, 2007 arrest warrant was enforceable and that the statute of limitations on the charge had not run;
(10) Photo identification on July 20, 2009 of Flores Ortiz by Florencia Catalina Camacena as the person who killed her husband before the Federal Public Prosecutor assigned to the General Directorate for Extraditions and Legal Assistance of the Mexican Federal Attorney General's Office;
(11) Birth certificate for Efrain Efren Flores Ortiz; and
(12) Photograph of Efrain Flores Ortiz (enlargement of photograph identified by Florencia Catalina Camacena on July 20, 2009).
The Government also submitted the following supplemental evidence in support of the extradition request, certified and authenticated on September 29, 2010 by Carlos Pascual, Ambassador of the United States:
(B) Sworn statement by Graciela Lopez Cruz, Federal Public Prosecutor assigned to the General Directorate for Extraditions and Legal Assistance of the Mexican Federal Attorney General's Office, dated September 24, 2010 (hereafter "Lopez Cruz Supp. Decl."), and a certified copy of the October 4, 2007 arrest warrant. Lopez Cruz Supp. Decl. & Ex. 1 [Doc. 15
at pp. 4-36].
Under the Treaty, when a request for extradition relates to a person who has not yet been convicted, Article 10 of the Treaty requires provision of, inter alia, a "certified copy of the warrant of arrest issued by a judge or other judicial officer of the requesting Party." Treaty, art. 10, para. 3(a). According to the State Department, there was "some ambiguity regarding whether or not the arrest warrant" submitted by Mexico with the Request for Extradition had "been certified as set forth in Article 10 of the Treaty." Blane Decl., ¶ 7 [Doc. 12 at p. 3]; Govt's Mem. in Supp. of Request for Extradition [Doc. 14] at 7. The supplemental declaration provided by Lopez Cruz clarifies that the arrest warrant accompanying the Request for Extradition had been properly certified by her original declaration. Lopez Cruz. Supp. Decl. at p. 4-6 [Doc. 15 at pp. 7-9]). Nonetheless, Mexico also provided a certified copy of the arrest warrant to the Government. Blane Supp. Decl., ¶ 3 [Doc. 16 at p. 5]; Supp. Document in Supp. of Request for Extradition [Doc. 15 at pp. 15-36] (certification at Doc. 15 at p. 34). Flores Lopez concedes that no issue exists with respect to the certification of the arrest warrant. Supp. Briefing [Doc. 26] at 2.
II. Legal Standards
A. General Principles
Extradition from the United States is a diplomatic process that is initiated when a foreign nation requests extradition of an individual from the Department of State. Prasoprat v. Benov, 421 F.3d 1009, 1010 (9th Cir. 2005); Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir. 2008). "After the request has been evaluated by the State Department to determine whether it is within the scope of the relevant extradition treaty, a United States Attorney . . . files a complaint in federal district court seeking an arrest warrant for the person sought to be extradited." Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir. 2003). "A judge or magistrate judge must then hold an extradition hearing to determine if the evidence is sufficient to sustain the charge of extradition under the relevant treaty." Manta, 518 F.3d at 1140. "Extradition treaties are to be liberally construed so as to effect their purpose, that is, to surrender fugitives for trial for their alleged offenses." Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 14 (1936).
The authority of a magistrate judge serving as an extradition judicial officer is limited to determining an individual's eligibility to be extradited, which is done by ascertaining (1) whether the crime is an extraditable offense under the subject treaty and (2) whether probable cause exists to sustain the charge. Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006). If the judge determines that these requisite elements have been met, the findings are incorporated into a certificate of extraditability. Id. The certificate is forwarded to the Department of State. The Secretary of State makes the ultimate decision on whether to surrender the individual to the requesting country. 18 U.S.C. § 3186. B. The Extradition Hearing
An extradition proceeding is not a trial[.]" Emami v. United States Dist. Court, 834 F.2d 1444, 1452 (9th Cir. 1987). Thus, "discovery in an international extradition hearing is limited and lies within the discretion of the magistrate [judge]." Matter of Extradition of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986). A fugitive's right to present evidence at the extradition hearing is severely limited. He or she may only present evidence that explains rather than contradicts the demanding country's proof. Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978). The extent to which a fugitive may offer explanatory proof is largely within the discretion of the court. Id. at 1369. "While the line between 'contradictory' and 'explanatory' evidence is not sharply drawn, the purpose of permitting explanatory evidence is to afford the relator 'the opportunity to present reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause.'" Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991) (citation omitted).
Evidence of facts contradicting the demanding country's proof or establishing a defense may properly be excluded. Hooker, 573 F.2d at 1369. The court may also properly exclude evidence of alibi, of facts contradicting the government's proof, or of a defense such as insanity. Id. at 1368 (citations omitted). The fugitive has no right to cross-examine witnesses in an extradition proceeding. Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1406 (9th Cir. 1988). "Because of the limited function of an extradition proceeding and the limited participation permitted of the fugitive, the order of the court does not reflect a consideration of all the merits of the case." Hooker, 573 F.2d at 1368.
III. Discussion
A. Determination of Whether the Offense is Extraditable
In determining whether the subject crime is an extraditable offense, the Court must find that an extradition treaty exists between the United States and Mexico, and that the crime charged is covered by the treaty. Vo, 447 F.3d at 1237 (citing 18 U.S.C. § 3184).
1. Existence of Treaty
The Government has submitted a declaration from Alexis R. Blane, Attorney Adviser in the Office of the Legal Advisor for the Department of State, Washington, D.C., dated September 29, 2010, which verifies that the Extradition Treaty between the United States and Mexico, TIAS 9656, was signed on May 4, 1978 and is presently in full force and effect. Blane Decl., ¶ 3 [Doc. 12 at p. 2]. A copy of the Treaty is attached to the declaration. See id. [Doc. 12 at pp. 12-34]. Ms. Blane's statement on this matter is entitled to deference. See Matter of Extradition of Mainero, 990 F. Supp. 1208, 1216 (S.D. Cal. 1997) (finding that State Department's opinion on force and effect of treaty is entitled to deference). Moreover, Flores Ortiz does not contest the existence of the Treaty. See Tr., 8:14-17. The Court accordingly finds that an extradition treaty exists between the United States and Mexico.
2. Treaty Coverage
The Treaty sets forth the following with respect to "Extraditable Offenses":
1.- Extradition shall take place, subject to this Treaty, for wilful 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.Treaty, art. 2, para. 1. In this case, the Blane Declaration provides, "The offense for which extradition is sought is punishable in accordance with the laws of both contracting parties by deprivation of liberty for a period of at least one year, and is covered under Article 2 of the [Treaty]." Blane Decl., ¶ 5 [Doc. 12 at 3]. Again, Ms. Blane's opinion is entitled to deference. See Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (stating that opinion of State Department on meaning given to treaty is given great weight); see also Mainero, 990 F. Supp. at 1216.
A review of the Treaty also confirms that the crime charged is covered by the Treaty. The Appendix to the Treaty specifically lists "murder or manslaughter," which the Court finds includes the charged crime of aggravated homicide. See Valentine, 299 U.S. at 10 (stating that treaty provisions are to be liberally construed). Aggravated homicide is defined by the Oaxaca Criminal Code as a homicide "committed with malice aforethought, unfair advantage, lying in wait or treachery." See Oaxaca Criminal Code, art. 299 (Lopez Cruz Decl., Ex. 1 [Doc. 13 at p. 23]). The most analogous crime in the United States is murder, as defined by 18 U.S.C. § 1111. See 18 U.S.C. § 1111(a) (defining murder as "the unlawful killing of a human being with malice aforethought"). Under section 1111, one found guilty of murder shall be punished "by death or by imprisonment for life" (first degree murder) or "shall be imprisoned for any term of years or for life" (second degree murder). Id., § 1111(b). Aggravated homicide in Oaxaca, Mexico carries a term of imprisonment of thirty to forty years. See Oaxaca Criminal Code, art. 291 (Lopez Cruz Decl., Ex. 1 [Doc. 13 at p. 23]). Therefore, the alleged offense is specifically set forth as an extraditable crime in the Treaty Appendix and is punishable by a maximum imprisonment of not less than one year in both the United States and Mexico. Flores Ortiz does not contest that the crime charged is covered by the Treaty. Tr., 8:19-9:1. The Court therefore finds that the crime charged constitutes an extraditable offense under Article 2 of the Treaty.
3. Lapse of Time
The Court must next examine Flores Ortiz's contention that extradition is barred under the laws of the two countries due to lapse of time. Article 7 of the Treaty provides the following with respect to "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.Treaty, art. 7. Flores Ortiz makes two arguments that extradition should be denied due to the lapse of time: first, that Mexico's failure to seek extradition for over two years after he allegedly committed the offense bars prosecution under the Sixth Amendment, and second, that prosecution is barred by the statute of limitations under United States law.
a. Sixth Amendment Right to a Speedy Trial
Flores Ortiz contends that the Sixth Amendment bars prosecution against him because the Mexican government failed to seek his extradition for at least two years after the crime was committed. He argues, "Unlike extradition treaties with other nations, the Treaty with Mexico prohibits extradition where the lapse of time bars prosecution under the laws (plural) of the two countries. This prohibition is not limited to the statute of limitations." Opp'n [Doc. 20] at 3. He then goes on to cite extradition treaties between the U.S. and twelve other countries which specifically bar extradition due to a lapse of time resulting from the running of the statute of limitations. Id. at 3-5. His point is that "when Congress intends to prohibit extradition only if prosecution is barred by the statute of limitations and not other U.S. laws barring prosecution based on the lapse of time, such as the Sixth Amendment, it knows how and so states." Id. at 5. He contends that Mexico and the U.S. "have specifically contracted to apply the laws relating to delays in prosecution of both countries." Id. at 7.
In the opening to his argument on this point, Flores Ortiz mistakenly argues that Mexico failed to seek extradition for ten years. See Opp'n [Doc. 20] at 3. He then argues that Mexico delayed seeking extradition for two years. Id. at 8. The crime at issue occurred on July 31, 2007, and the Diplomatic Note formally requesting Flores Ortiz's extradition was submitted by Mexico to the United States on September 2, 2010. Diplomatic Note 05434 [Doc. 12 at p. 6]. Prior to that, on March 24, 2010, Mexico had submitted a petition to the United States regarding the provisional arrest of Flores Ortiz for extradition purposes. Id. Thus, the correct period of time between the commission of the crime and Mexico's request for Flores Ortiz's extradition is approximately three years.
Flores Ortiz then goes on to argue that his Sixth Amendment right to a speedy trial was violated because he did not know of charges pending, charges were not filed against him, and because any prosecution could have easily been brought because his location was known, and he "was in no way hiding or avoiding charges." Id. at 6. In short, he argues that Mexico's delay in seeking extradition would bar prosecution under the laws of the United States, and thus extradition should be denied under the terms of the Treaty. The Government argues in response that prosecution against Flores Ortiz is not barred by lapse of time, because the Sixth Amendment right to a speedy trial does not apply to extradition proceedings. See Reply at 4.
There is no Sixth Amendment right to a speedy trial in extradition cases. See, e.g., Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978); Jhirad v. Ferrandina, 536 F.2d 478, 485 n.9 (2d Cir. 1976). A person who commits a crime in a foreign country is not entitled to "demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. . . . unless a different mode be provided for by treaty stipulations between that country and the United States." Neely v. Henkel, 180 U.S. 109, 123 (1901). Therefore, unless the extradition treaty between the United States and Mexico incorporates the Sixth Amendment right to a speedy trial, Petitioner is not entitled to invoke this right.
The Ninth Circuit has not squarely addressed whether the "laws of the . . . requested Party" under the lapse of time provision in the Treaty incorporates the Sixth Amendment. It has, however, rejected the incorporation of constitutional protections into other extradition treaty provisions. In Kamrin, the Ninth Circuit held that Kamrin 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 v. U.S., 725 F.2d 1225, 1227-28 (9th Cir. 1984). In so doing, the court relied on the long-settled rule that "United States due process rights cannot be extended extraterritorially." Id. at 1228 (citing Neely, 180 U.S. at 122-23). The Ninth Circuit reached the same conclusion in Kraiselburd when interpreting the "remedies and recourses" provision in the treaty between the U.S. and Argentina. See Kraiselburd, 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."). The Ninth Circuit's reasoning in Kamrin and Kraiselburd support a finding that the lapse of time provision in the Treaty does not incorporate the Sixth Amendment right to a speedy trial. Indeed, the Eleventh Circuit applied this reasoning when it interpreted a lapse of time provision which, like the provision in the U.S.-Mexico treaty, required compliance with both the laws of the requesting and the requested countries, and held that the provision "refers 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).
Not only is the argument put forth by Flores Ortiz inconsistent with the above authorities, but the cases upon which he relies to support his position are inapposite, as each pertain to criminal prosecutions in the United States, not to foreign prosecutions. See U.S. v. Fernandes, 618 F. Supp. 2d 62 (D.D.C. 2009); U.S. v. Mendoza, 530 F.3d 758 (9th Cir. 2008) . As each of these cases involved violations of United States law charged in a United States court, they provide no guidance on the applicability of the right to a speedy trial to a crime committed in a foreign jurisdiction and to be tried in a foreign court.
The Court accordingly finds that Flores Ortiz's argument that the "lapse of time" provision in the Treaty incorporates the Sixth Amendment right to a speedy trial is without merit. // //
b. Statute of Limitations Under United States Law
Flores Ortiz also contends that the statute of limitations has run under United States law.
Both parties agree, and the Court finds, that 18 U.S.C. § 3282, which provides the federal statute of limitations for non-capital offenses, applies. Section 3282 provides in relevant part:
Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.18 U.S.C. § 3282(a). Therefore, a five year statute of limitations would apply under United States law.
Flores Ortiz argues that the arrest warrant issued in Mexico did not toll the statute of limitations because it does not constitute an indictment or information. Opp'n [Doc. 20] at 9. This argument, however, is invalid under controlling Ninth Circuit authority. In Sainez v. Venables, the Ninth Circuit held "that for the purpose of a civil proceeding such as an extradition, a Mexican arrest warrant is the equivalent of a United States indictment and may toll the United States statute of limitations." Sainez v. Venables, 588 F.3d 713, 717 (9th Cir. 2009). Here, the homicide occurred on July 31, 2007 and the Mexican arrest warrant -- the charging instrument under Mexican legal procedure -- was issued on October 4, 2007, just over two months later. Applying Sainez, the Mexican prosecution was timely commenced under the five-year United States statute of limitations. The Court accordingly finds that prosecution of the aggravated homicide charge against Flores Ortiz is not barred under United States law. B. Probable cause
Flores Ortiz makes no argument that the statute of limitations for prosecution of aggravated homicide has run under Mexican law. The Court's reading of the articles pertaining to the statute of limitations in the Oaxaca Criminal Code (see Lopez Cruz Decl., Ex. 1 [Doc. 13 at pp. 26-27]) is that issuance of the October 4, 2007 arrest warrant clearly satisfied the requirements of those articles. The Oaxaca Judicial District made the same finding on March 10, 2009, when it found that the October 4, 2007 arrest warrant is enforceable and that the statute of limitations on the aggravated homicide charge had not run. Id., Ex. 9 [Doc. 13 at p. 69].
The central function of the extradition magistrate judge is to determine whether there is competent evidence to justify holding the accused to await trial in the requesting state, and not to determine whether the evidence is sufficient to justify a conviction. Collins v. Loisel, 259 U.S. 309, 316 (1922); see also United States v. Wiebe, 733 F.2d 549, 553 (8th Cir. 1984) ("The extradition hearing is not a trial on the merits to determine guilt or innocence, but serves as a means of ensuring that probable cause exists to believe the person whose surrender is sought has committed the crime for which his extradition is requested."); Hooker, 573 F.2d at 1367. "The probable cause standard applicable in extradition proceedings is defined in accordance with federal law and has been described as 'evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.'" Wiebe, 733 F.2d at 553 (citation omitted). The judicial officer who conducts an extradition hearing "thus performs an assignment in line with his or her accustomed task of determining if there is probable cause to hold a defendant to answer for the commission of an offense." Lo Doca v. United States, 93 F.3d 1100, 1104 (2nd Cir. 1996).
1. Admissibility of Evidence
The admissibility of evidence in extradition matters is controlled by 18 U.S.C. § 3190, which provides as follows:
Depositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required.18 U.S.C. § 3190; Escobedo v. United States, 623 F.2d 1098, 1103 (5th Cir. 1980) (stating that section 3190, not state law, controls admissibility). "[A]uthentication is the only requirement for admissibility of evidence under general United States extradition law. Oen Yin-Choy, 858 F.2d at 1406; see also Zanazanian v. United States, 729 F.2d 624, 627 (9th Cir. 1984). The Supreme Court has found that extradition may be predicated entirely on the "unsworn statements of absent witnesses." Collins, 259 U.S. at 317. Indeed, both sworn and unsworn statements contained in properly authenticated documents are permissible. Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986). Additionally, hearsay evidence is permitted in extradition proceedings. Escobedo, 623 F.2d at 1102 n.10; Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969). This includes multiple hearsay. See Escobedo, 623 F.2d at 1102 (permitting written third-party account of deposition testimony); Zanazanian, 729 F.2d at 627 (permitting police report describing a witness statement).
Here, the documents submitted by the Government on behalf of Mexico were properly authenticated, and Flores Ortiz has not presented any argument or evidence to the contrary. As long as there is no conflict with the provisions of the subject treaty, evidence that has been authenticated is admissible in extradition proceedings. Emami, 834 F.2d at 1451. Article 10 of the Treaty addresses the admissibility of documents in evidence:
The documents which, according to this Article, shall accompany the request for extradition, shall be received in evidence when:Treaty, art. 10, para. 6. Mexico's request for extradition and supporting documents comply with this requirement. Therefore, under the general extradition law of the United States and the provisions of the Treaty, all of the documents submitted by the Government on behalf of Mexico are admissible for purposes of this extradition proceeding.
. . . .
b) In the case of a request emanating from the United Mexican States, they are certified by the principle [sic] diplomatic or consular officer of the United States in Mexico.
2. Identity
"At an extradition hearing, the court is required to determine whether the party before the court is the party named in the extradition complaint." Manta, 518 F.3d at 1143 (citation omitted). "Whether the person before the court is the accused is part of the magistrate judge's probable cause analysis." Id. (citation omitted). There must be "competent proof" of identity. Id. "[T]he credibility of the reported identification is a matter committed to the magistrate [judge]." Id. at 1145 (citation omitted). There is no per se rule that specifies which identification procedures are competent for probable cause purposes. Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir. 1986). "An identification based on a single photograph may be competent evidence of identity in an extradition proceeding." Manta, 518 F.3d at 1145 (citation omitted).
There is probable cause to believe that the person appearing before this Court is the person named in the extradition request and accompanying documents. Indeed, Flores Ortiz concurs that he is the person being sought for extradition and that he is the person identified in the photographs submitted by Mexico. Tr., 19:4-12; 22:25-23:3. He admits that his name is Efrain Flores Ortiz (id., 13:20-14:2) and that he was born on November 25, 1978 in Ixpantepec Nieves, Silacayoapam, Oaxaca, Mexico (id. 14:3-11), as indicated on the birth certificate supplied by Mexico (see Lopez Cruz Decl., Ex. 11 [Doc. 13 at p. 77]). The Court's own observation of Flores Ortiz at the extradition hearing and comparison to the photographs in the record (see id., Exs. 10, 12 [Doc. 13 at pp. 74, 79]) and age as reflected on the birth certificate (age 32) further establishes his identity as the person sought for extradition.
The Court accordingly finds that the Efrain Flores Ortiz named in the request for extradition and the person brought before this Court on the Complaint for Provisional Arrest with a View Towards Extradition are one and the same person.
3. Aggravated Homicide with Unfair Advantage
a. Oaxaca Criminal Code
The crime of homicide is defined in Article 285 of the Oaxaca Criminal Code as follows: "Any person who deprives from life another person, commits the crime of homicide." Lopez Cruz Decl. at 5 & Ex. 1 [Doc. 13 at pp. 9, 23]. Under Article 291, "The perpetrators of aggravated homicide shall be imprisoned from thirty to forty years." Id. Article 299 provides further, "Bodily injuries and homicide are aggravated when committed with malice aforethought, unfair advantage, lying in wait or treachery." Id. Article 301 states:
Unfair advantage exists:Id. at 5-6 & Ex. 1 [Doc. 13 at pp. 9-10, 23].
I. - Whenever the defendant is stronger than the victim and the victim is unarmed;
II. - Whenever the defendant is stronger due to the weapons he uses, by his skill in using those weapons, or due to the number of individuals who accompany him;
III. - Whenever the defendant, by any means, weakens the victim's defense, or
IV. - Whenever the victim is unable to move or [has] fallen, and the defendant is armed or standing.
In the first three cases, there is no unfair advantage if the person who has the advantage is acting in self-defense, nor in the fourth if the person armed or standing is the victim and furthermore if his life would have been endangered if he did not take that opportunity.
b. Summary of Evidence
According to the evidence submitted to support Mexico's extradition request, a male corpse was observed by authorities at "Calle Guerrero sin numero" (Guerrero Street not numbered) on July 31, 2007 at 8:50 hours. Lopez Cruz Decl., Ex. 1 [Doc. 13 at p. 2]. The corpse had seven external wounds caused by a firearm: one on the head, two on the right side, and four on the left side. Id. The corpse was identified as Celerino Adan Ortiz Vivar by Florencia Catalina Camacena, the decedent's wife, on July 31, 2007 at 18:20 hours. Id., Ex. 3 [Doc. 13 at pp. 32-33]. At the time she made the identification, Florencia also provided a statement which was summarized as follows:
[S]he was at her domicile when she heard some shots; she immediately went out through the main door, and when she was there she realized that [her] husband had been shot. The only thing she could say was 'what have you done to my husband," reason for which after realizing the event, she was pointed with the same firearm, and shot, without achieving the objective; therefore the individual immediately [hid] behind a blue-color [v]an with gray stripes. She also states that the perpetrator was outside the unit when committing the crime, and once he achieved his objective, he ran away in his gray-color automobile, Toyota brand without plates. She states she knows the murderer because [she] saw him face to face, and she identifies him as Efrain Flores Ortiz, who is also from Ixpantepec Nieves.Id.
Ixpantepec Nieves is a town and municipality in Oaxaca in southwestern Mexico. As of 2005, the municipality had a total population of 1371. http://en.wikipedia.org/wiki/Ixpantepec_Nieves (as visited Jan. 12, 2011).
According to the death certificate submitted with the extradition request, the decedent, Celerino Adan Ortiz Vivar, died on July 31, 2007 at 7:50 hours. Id., Ex. 4 [Doc. 13 at p. 35]. The cause of death was "severe cranioencephalic trauma with multiple fracture of cranial cavity and exposure of brain matter, besides a heart perforation, secondary to wounds caused by a projectile shot from a firearm." Id. The autopsy report identifies seven injuries caused by projectile shot from a firearm. Id., Ex. 7 [Doc. 13 at pp. 43-44].
Alejandro Ortiz Camacena, the decedent's 14-year-old son, provided a signed statement to authorities on August 28, 2007. Id., Ex. 5 [Doc. 13 at pp. 37-38]. According to the statement,
[O]n Tuesday, July 31, 2007 at 08:00 AM, [w]hen my father was still alive, . . . he got down from a truck . . . [and] told me to bring him his wallet, which was inside the house, which is why, I immediately went for the wallet, inside the room, and when I was inside the room, I suddenly heard, approximately 8 gun shots, when I got out to see what had happened, I realized that my father was laying wounded, at the door of my house, my mother named Florencia Catalina Camacena was already at the place, helping [my] father and realizing that the person that had shot him was named Efrain Flores Ortiz, who is native and inhabitant of the same
population, given the fact that I still saw him with a gun in his hand, at the moment when he was getting in his car, which was a grey American car.
Id.
Diego Armando Camacena Pizarro, the decedent's 20-year-old nephew, also provided a signed statement to authorities on August 28, 2007. Id., Ex. 6 [Doc. 13 at pp. 40-41]. According to the statement,
[O]n Tuesday, July 31, 2007, approximately at 07:38 AM, when I was heading to a store, which is property of Mrs. Guadalupe Guzman, which is located in the same street Guerrero next to calle Libertad, I realized that my uncle, who is now dead, named Celerino Adan Ortiz Vivar, was aboard in a truck of him, in reverse, I realized that he got down from the truck, in front of his domicile, I also noticed that in the same street, an individual named Efrain Flores Ortiz, was riding his car, who is native and inhabitant of the population of Ixpantepec, Nieves, . . . and at the moment of arriving in front of the domicile, of my aforementioned uncle, this individual got down armed with a gun from his vehicle, and in that moment he started shooting my uncle . . ., who was in front of the entrance door of his domicile, and due to the gun shots he fell to the ground. In that moment, my aunt named Florencia Catalina Camacena got out from her house, and the aforementioned individual also shot her, but she covered behind a truck that belonged to my uncle, in like manner, I heard approximately 8 gun shots, which is why, once this individual did that, he immediately got in his car of grey color, of American type and he fled away with an unknown destiny, later on I went to help my uncle but he was already dead[.]
Id.
On October 4, 2007, an arrest warrant was issued by the Oaxaca Judicial District for the arrest of Efrain Flores Ortiz for his "probable criminal responsibility for the commission of the crime of Homicide Aggravated by Unfair Advantage committed against Celerino Adan Ortiz Vivar." Id., Ex. 8 [Doc. 13 at pp. 47-67]. On March 10, 2009, the Oaxaca Judicial District found that the October 4, 2007 arrest warrant was enforceable and that the statute of limitations on the charge had not run. Id., Ex. 9 [Doc. 13 at pp. 69-70].
On July 20, 2009, Florencia Catalina Camacena, the decedent's wife, appeared before the Federal Public Prosecutor assigned to the General Division of Extraditions and Legal Assistance of the Office of the Assistant Attorney General for Legal and International Affairs of the Office of the Attorney General of the Republic for recognition and identification proceedings. Id., Ex. 10 [Doc. 13 at pp. 72-73]. She was shown a photograph lineup consisting of six photos, and identified the individual appearing in photograph number 5 as the person who killed her husband. Id., Ex. 10 [Doc. 13 at pp. 73-74]; see also id., Ex. 12 [Doc. 13 at p. 79] (consisting of enlargement of photograph number 5).
c. Discussion
The Court finds that the statements by Florencia Catalina Camacena, Alejandro Ortiz Camacena, and Diego Armando Camacena Pizarro demonstrate probable cause that Flores Ortiz committed aggravated homicide with unfair advantage of Celerino Adan Ortiz Vivar. All three of the witnesses definitively identified Flores Ortiz as the person who killed the decedent, and all three allege he did so with a gun. Florencia, the decedent's wife, made her identification within hours of the shooting when she provided a formal statement, under oath, to authorities. Lopez Cruz Decl., Ex. 3 [Doc. 13 at pp. 32-33]. She provided a photo identification of Flores Ortiz, again under oath, when summoned to do so by Mexican extradition authorities. Id., Ex. 10 [Doc. 13 at pp. 73-74]. She was familiar with Flores Ortiz due to his being from the same town, and was able to identify him as the suspect because she came "face to face" with him immediately after her husband was shot. Indeed, she herself was allegedly shot at by Flores Ortiz. Id., Ex. 3 [Doc. 13 at pp. 32-33]. Alejandro, the decedent's son, also recognized Flores Ortiz as the person who shot his father. He saw Flores Ortiz with a gun in his hand as he fled away from the scene. Id., Ex. 5 [Doc. 13 at pp. 37-38]. Diego, the decedent's nephew, observed the events leading up to the shooting, and was an eyewitness to the shooting itself. Id., Ex. 6 [Doc. 13 at p. 40]. The Court finds all three statements to be sufficiently reliable to be deemed competent evidence to establish probable cause that Flores Ortiz committed the homicide of the decedent.
The three statements also constitute competent evidence that Flores Ortiz committed the homicide by using a gun. Other evidence in the record, including the death certificate and autopsy report, demonstrate that the decedent died as a result of gunshot wounds and thus corroborate the three witness statements on this point. Id., Exs. 4 & 7 [Doc. 13 at pp. 35, 43-45]. The evidence of the use of a gun establishes probable cause that the homicide of the decedent was committed with "unfair advantage", as defined under Article 301 of the Oaxaca Criminal Code. Id., 5-6 & Ex. 1 [Doc. 13 at pp. 9-10, 23].
Flores Ortiz contends that probable cause does not exist. At the extradition hearing, Flores Ortiz advised the Court, for the first time, that there had been a family feud between his family and the family of the decedent, and that the blame for the decedent's murder had been unfairly placed on him. Tr., 20:3-10. Flores Ortiz claims that he was not even in Oaxaca at the time the shooting occurred (id., 20:6-7), and offered a letter dated January 11, 2011 by Alejandro Camacho, Branch Manager for Construction Metals, located in Fontana, California, to support this assertion. The letter provides as follows:
Counsel for Flores Ortiz stated that he had just received the letter one hour prior to the extradition hearing. Tr., 2:18-3:7.
Efrain Flores OrtizCamacho Letter, Doc. 31. The homicide allegedly occurred on July 31, 2007 at 7:50 a.m. Lopez Cruz Decl., Ex. 4 [Doc. 13 at p. 35]. Therefore, the Camacho Letter constitutes evidence of an alibi defense for Flores Ortiz -- that is, that he was at work in Fontana, California, at the time the subject homicide occurred in Oaxaca, Mexico.
Work for [C]onstruction [M]etals for [three] years, from January 2nd 2006 thru October 31st 2008. On July 31st 2007 Mr. Efrain Flores was working in our warehouse . . . . He was a Construction Metals Inc. driver[.] On July 31st was a slow day & he work onside the warehouse stacking material in the shelf and pulling orders for deliveries next day[.] . . .
July 2007 he did work all month until the 31st. On July 31st 2007 he starts in at 6 am, takes his break at 10am for 15 minutes until 10:15 am. He work until 12 noon, took 30 minutes lunch until 12:30 pm. He work until 2:30 pm on July 31st. . . .
The Government objects to the admission of the Camacho Letter on two grounds. First, the Government contends that the letter is not admissible under Hooker v. Klein, which states that evidence of alibi or facts contradicting the Government's proof is properly excluded in an extradition proceeding. Tr., 17:9-18:9 (citing Hooker v. Klein, 573 F.2d at 1368). Second, the Government objects to the letter on the basis that it does not constitute competent evidence as the author "does not explain how he knows what he knows and specifically how he knows what happened three and a half years ago on July 31, 2007 and may be just speculating." Id., 18:10-20. Further, the Government observes that if Camacho referred to written records when writing the letter, those records had not been presented to the Court. Id., 18:20-21.
The Court agrees with both of the Government's arguments. To reiterate, the purpose of an extradition hearing is to determine whether probable cause exists to sustain the charge, not to weigh evidence or to determine guilt or innocence. See, e.g., Wiebe, 733 F.2d at 553; Hooker, 573 F.2d at 1367. "Participation by the fugitive at the extradition proceeding is limited; he is not permitted to introduce evidence on the issue of guilt or innocence but can only offer evidence that tends to explain the government's case of probable cause." Hooker, 573 F.2d at 1368. And, as reflected in the Government's argument, evidence of facts which establish a defense, including an alibi defense, are properly excluded in extradition proceedings. Id. at 1368-69. An order certifying extradition "does not reflect a consideration of all the merits of the case." Id. at 1368. Rather, "[a] finding of extradition signals the start, rather than the conclusion, of litigation of the fugitive's guilt or innocence." Id. at 1367. Moreover, even if the Court could consider the information set forth in the Camacho Letter, it would be of very little, if any, probative value. Camacho's letter is not signed under penalty of perjury, nor does it set forth the basis for the statements contained therein. It is unclear whether Camacho reviewed records in connection with his preparation of the letter, or if he has an independent recollection of the times and events set forth in the letter. "Admission of evidence in an international extradition proceeding is within the magistrate [judge's] discretion." Kraiselburd, 786 F.2d at 1399. The Court finds that the Camacho Letter is inadmissible in this proceeding.
Furthermore, it would be outside the scope and purpose of an extradition proceeding to, as Flores Ortiz requests, subpoena Camacho to appear before the undersigned in order to question him and preserve his testimony for potential use in forthcoming Mexican legal proceedings. See Tr., 23:15-24, 26:5-15. The Court's task is limited to determining Flores Ortiz's eligibility to be extradited. See, e.g., Vo, 447 F.3d at 1237. It is improper to utilize an extradition proceeding to obtain discovery for the purpose of finding evidence for use at trial in the foreign jurisdiction. Therefore, the Court declines Flores Ortiz's request to subpoena Camacho for purposes of securing his testimony.
Flores Ortiz also advised at the extradition hearing that his family expected to receive documents "related to the events in Mexico" by the end of January. Tr., 20:10-22. Flores Ortiz was unable to provide any explanation as to the content of these documents. Id. Again, an extradition proceeding is not a trial on the merits. See, e.g., Wiebe, 733 F.2d at 553. "The decisions are emphatic that the extraditee cannot be allowed to turn the extradition hearing into a full trial on the merits." Matter of Sindona, 450 F.Supp. 672, 685 (S.D.N.Y. 1978); see also Quinn, 783 F.2d at 815 ("The magistrate [judge] does not weigh conflicting evidence and make factual determinations but, rather, determines only whether there is competent evidence to support the belief that the accused has committed the charged offense."). As found above, competent evidence does exist to support a finding of probable cause in this matter. The Court accordingly declines to hold the record open for submission of these documents.
Flores Ortiz further argues that there is no probable cause to support the "unfair advantage" component of the crime charged and observes that unfair advantage is only considered as an aggravating circumstance "when the advantage is such that the offender is in no danger of being killed nor bodily injured by the victim, and the offender does not act in self-defense." Opp'n [Doc. 20] at 12. Flores Ortiz erroneously cites to the Baja California Criminal Code in support of this argument. Id. Nonetheless, the applicable code, i.e., the Oaxaca Criminal Code does contain a similar provision. Oaxaca Criminal Code, art. 301 (Lopez Cruz Decl., Ex. 1 [Doc. 13 at p. 23]). This argument, however, is without merit as there is simply no evidence in the record supporting a theory of self-defense. Even if there was, such evidence would be suited to admission at a trial on the merits, not at this proceeding. Accordingly, this argument fails.
Flores Ortiz makes various other arguments that probable cause has not been established. See Opp'n [Doc. 20] at 11. These arguments, however, are made in conclusory fashion and thus have no merit.
After thoroughly considering all of the foregoing arguments and evidence, the Court finds the evidence submitted by Mexico, through the Government, sufficient to support a finding of probable cause with respect to the charge of aggravated homicide with unfair advantage.
IV. Conclusion
Based on the foregoing, the Court finds that Mexico, through the Government, has provided all of the necessary information required by the Treaty to succeed in its request for the extradition of Efrain Flores Ortiz a/k/a Efrain Efren Flores Ortiz on the charge of Aggravated Homicide Committed with Unfair Advantage of Celerino Adan Ortiz Vivar. Therefore, the Court GRANTS the request for extradition.
The extradition request and the supporting documents are properly certified and authenticated or otherwise admissible within the discretion of the Court. Accordingly, the Court will certify the above findings, and all documents admitted into evidence, to the Secretary of State, pursuant to 18 U.S.C. § 3184.
IT IS SO ORDERED. DATED: February 9, 2011
/s/_________
Jan M. Adler
U.S. Magistrate Judge