Mainero v. Gregg

• Decision Date: 07 January 1999
• Docket Number: 98-55069,Nos. 98-55067,s. 98-55067
• Citation: 164 F.3d 1199
• Parties: 99 Cal. Daily Op. Serv. 200, 99 Daily Journal D.A.R. 281 Emilio Valdez MAINERO, a/k/a Ricardo Gonzalez Leon; a/k/a Ricardo Emilio Valdez-Mainero; a/k/a Emilio Ricardo Valdez, Petitioner-Appellant, v. Stephen S. GREGG, Respondent-Appellee. Alfredo Hodoyan Palacios, a/k/a El Lobo 88, Petitioner-Appellant, v. Stephen S. Gregg, United States Marshal for the Southern District of California, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1199

164 F.3d 1199

99 Cal. Daily Op. Serv. 200, 99 Daily Journal

D.A.R. 281

Emilio Valdez MAINERO, a/k/a Ricardo Gonzalez Leon; a/k/a

Ricardo Emilio Valdez-Mainero; a/k/a Emilio

Ricardo Valdez, Petitioner-Appellant, v. Stephen S. GREGG, Respondent-Appellee.

Alfredo Hodoyan Palacios, a/k/a El Lobo 88, Petitioner-Appellant, v. Stephen S. Gregg, United States Marshal for the Southern

District of California, Respondent-Appellee.

Nos. 98-55067, 98-55069.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1998.

Decided Jan. 7, 1999.

Michael Pancer, San Diego, California, for petitioners-appellants.

Gonzalo P. Curiel, Assistant United States Attorney, San Diego, California, for respondent-appellee.

Appeals from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CV-97-02294-MLH.

Before: BOOCHEVER, REINHARDT and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Emilio Valdez Mainero (Valdez) and Alfredo Hodoyan Palacios (Hodoyan) were certified as extraditable to Mexico on charges of murder and criminal association with the Arellano Felix drug trafficking organization (AFO). ¹ Since there is no right of appeal from extradition orders, Valdez and Hodoyan filed petitions for writs of habeas corpus in the district court, 28 U.S.C. § 2241, which the court denied. Valdez and Hodoyan seek reversal primarily on the ground that the magistrate judge should not have allowed into evidence statements allegedly extracted by torture. They also urge us to decline extradition on humanitarian grounds. While the magistrate judge, the district judge, and we are troubled by evidence suggesting that torture may have occurred, we agree with the district court that the competent evidence supports the magistrate judge's finding of probable cause and that there is no basis for applying a humanitarian exception to extradition in this case. Therefore, as we have jurisdiction, 28 U.S.C. § 1291 and 28 U.S.C. § 2253, we affirm.

I

Mexico sought extradition of Hodoyan based on two charges: (1) the first degree murders of Ernesto Ibarra Santes (Ibarra), who was then Sub-Delegate of the National Institute for the Combat of Drugs, Mexican Judicial Agents Israel Moreno Flores and Juan Aaron Rosas Gallegos, and taxi driver Juan Arturo Hernandez Lizardi on September 14, 1996; and (2) criminal association (the Mexican legal equivalent of conspiracy) through the AFO to plan and carry out assassinations of perceived AFO enemies. Valdez's extradition was requested on charges of criminal association by carrying out assassinations for the AFO, and the first degree murder of Jesus "Bebe" Gallardo Vigil (Gallardo) and Jesus Sanchez Angulo (Sanchez) on April 9, 1996. ²

A Mexico's Evidence

Mexico's extradition submissions ³ include detailed witness statements made on October 12 and 13, 1996 by Gerardo Cruz Pacheco (Cruz), indicating that he was associated with the AFO and participated in both the Ibarra and Gallardo murders; September 29 and October 2 by Francisco Cabrera Castro (Cabrera), who said he was involved in the Ibarra murder; and September 30 by Gilberto Vasquez Culebro (Vasquez), who identified himself as a member of the AFO and provided information about the individuals involved in the Gallardo murder. Each witness was represented by counsel and made his statements to an agent of the Mexican Federal Public Prosecutor. With the exception of Vasquez, each also made preparatory statements before the First District Judge of Federal Criminal Proceedings in the State of Mexico. Fausto Soto Miller (Soto) also made two statements, on September 27 and September 30, to an agent of the Federal Prosecutor, as well as a preparatory statement on October 2, 1996 before the First District Judge. Gustavo Miranda Santacruz (Miranda) was interviewed by an Assistant United States Attorney (AUSA) on November 19, 1996 in a San Diego hospital after being shot, allegedly by a member of the AFO; he identified Hodoyan and Valdez as members of the AFO who were involved in the charged murders, and he explained the motive for both. Finally, Alejandro Enrique Hodoyan Palacios (Alejandro), Hodoyan's brother, gave a videotaped deposition in Mexico on November 30, 1996, and was interviewed in the United States in February 1997 about his brother's and Valdez's involvement in both murders.

1. The Ibarra Murders

Ibarra (and others in his taxi) were killed at approximately 12:20 a.m. on September 14, 1996 by gunmen using long-range weapons. According to Cabrera's statement, he participated in the Ibarra murders along with Hodoyan, Fabian Martinez Gonzalez (Martinez), Cruz, and others. ⁴

Hodoyan and Martinez called Cabrera on September 13, 1996, and instructed him to pick them up at the International Airport in Mexico City between 1:30 p.m. and 2:00 p.m Martinez telephoned Cruz the same day and asked him to drive a navy blue Cutlass with a suitcase of weapons to the airport. Cabrera picked up Hodoyan and the others at the airport and the group went to a restaurant. There, they met Cruz, who had a gray Spirit and a dark blue Cutlass, the vehicles later used in the assassination of Ibarra. ⁵

On instructions from Martinez, Cabrera rented two rooms at the J.R. Hotel, close to the airport, under a false name. At approximately 10:40 p.m., Martinez informed the group that Ibarra had arrived at the airport. The group went to the hotel parking lot, where Martinez unlocked the trunk of the gray Spirit and opened a suitcase containing AK-47 submachine guns. Hodoyan and his accomplices drove the Spirit to the airport parking structure where they met Cruz, who was waiting in the dark blue Cutlass. Cruz confirms that the Spirit driven by Cabrera parked next to him. Martinez and others got out of the Spirit and Martinez told Hodoyan to "set the things [firearms] now." Cabrera watched Hodoyan, who was sitting in the back seat of the Spirit, recline the seat and retrieve the weapons from the trunk. Eduardo Leon took three firearms from the floor of the Spirit and put them in the Cutlass. At approximately 11:15 p.m., Hodoyan was paged by Martinez-the pre-arranged signal to go to the taxi stand. Immediately thereafter, Hodoyan told the group "let's get out of here."

The two cars left the parking structure and headed to the taxi stand. At approximately 11:40 p.m., Martinez identified the targeted taxi. Martinez got into the gray Spirit, where Hodoyan handed him a rifle. Cabrera, who was driving the Spirit, followed the taxi. The Cutlass followed the Spirit. When they caught up to the taxi, Martinez (from the front seat) and Isaac Contreras Ayala (Contreras) (from the back seat) shot at the passengers in the taxi. Almost immediately, the dark blue Cutlass arrived. The vehicles then left the scene, regrouped, and the passengers in the Cutlass gave their weapons to Hodoyan and Contreras to put into the trunk of the Spirit.

The next day, Cabrera met with Martinez and Hodoyan, who were talking about the assassination. Cabrera heard them say, "We screwed that ... doctor." When Cabrera asked if the doctor was their enemy, Martinez responded, "Yes. He was a very bad enemy of ours and of the boss's." Cabrera understood him to be referring to Ramon Arellano Felix.

In addition, Soto's statement indicates that Hodoyan called September 17 and told him to meet Cabrera in Mexico City, where Cabrera was to give him a blue Cutlass to hide because the car had been used to carry out a special job in Mexico City against some federal judicial police who were travelling in a taxi. Miranda also indicates that the motive for Ibarra's murder was to eliminate an enemy of the AFO. Martinez had asked Miranda to participate in the Ibarra slaying and to bring his AK-47, but Miranda refused and Martinez became furious. Three weeks later Miranda was shot.

2. The Gallardo Murders

On April 9, 1996, Gallardo and Sanchez were murdered at the Holiday Inn in Toluca, Mexico. Cruz identified himself as a participant in these murders in his October 12, 1996 statement to Mexican authorities. He states that Valdez, Martinez, and Contreras were also involved and that he was instructed by Martinez to meet them at the Glorieta del Angel at 6:00 p.m. From there, Valdez and Martinez drove a white Volkswagen (which an eyewitness also saw) carrying short range weapons, and Contreras and Cruz drove a navy blue Cutlass to the Holiday Inn. Valdez told Contreras to wait for him and to block the exit when he saw the Volkswagen leave the parking lot. This would ensure that they couldn't be followed. At approximately 9:30 p.m., Valdez and Martinez found Gallardo. They shot and killed him and Sanchez, who was with Gallardo at the time. Cruz heard the shots, and then he saw the white Volkswagen speed out of the parking lot. He followed in the navy blue Cutlass.

Valdez, Martinez, and the others met in San Mateo Atenco, where Valdez stated that " '[t]he Baby' paid me off. Nobody threatens my brother because the moron who does it, dies." Testimony from other sources indicates that Gallardo had previously threatened Valdez's brother with a firearm. Alejandro testified that Valdez told him that Gallardo was also murdered for identifying Benjamin Arellano as the owner of a load of marijuana and for working with a competitor of Benjamin Arellano Felix. Several days later, Martinez told Cruz that he would be paid to hold the .38 Super and the 9mm guns that they had used to kill Gallardo and Sanchez.

Based on his acquaintance with the perpetrators, his conversations with them, and his own presence at some of the events, Miranda indicated that Valdez and Martinez committed the Gallardo murder using a white-colored vehicle and another car for protection. He added that the motivation for the murder was Gallardo's alleged threats to Valdez's brother with a firearm. Because at times he was a cook for Benjamin Arellano Felix (which Miranda confirmed), Soto...