In re Santos

• Decision Date: 09 January 2017
• Docket Number: No. CV 06–5092 AJW,CV 06–5092 AJW
• Citation: 228 F.Supp.3d 1034
• Court: U.S. District Court — Central District of California
• Parties: In the MATTER OF the EXTRADITION OF Jose Luis Muñoz SANTOS, a/k/a Jose Luis Hernandez Santos

228 F.Supp.3d 1034

In the MATTER OF the EXTRADITION OF Jose Luis Muñoz SANTOS, a/k/a Jose Luis Hernandez Santos,

No. CV 06–5092 AJW

United States District Court, C.D. California, Western Division.

Signed January 9, 2017

228 F.Supp.3d 1035

MEMORANDUM AND DECISION

ANDREW J. WISTRICH, United States Magistrate Judge

Procedural History

The United States (the "government") filed on behalf of Mexico a request for the extradition of Jose Luis Muñoz Santos ("Muñoz") in 2006. Unlike most requests for extradition, this one has not gone smoothly. See In re Extradition of Santos , 473 F.Supp.2d 1030, 1036 (C.D. Cal. 2006) ("Not only did a Mexican court invalidate the first arrest warrant, but the second arrest warrant, which was obtained after Mexican prosecutors had notice of the deficiencies

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in the first warrant, also was invalidated."). Eventually, after numerous continuances and other delays, this court certified Muñoz for extradition. As discussed at length in that decision, the principal evidence establishing probable cause to believe that Muñoz committed the charged offense—kidnapping—consists of statements by Jesus Servando Hurtado Osuna ("Hurtado") and Fausto Librado Rosas Alfaro ("Rosas"), both of whom confessed to participating in the kidnaping and named Muñoz as a co-conspirator. See In re Extradition of Santos , 795 F.Supp.2d 966, 975–979 (C.D. Cal. 2011).

Muñoz filed a petition for a writ of habeas corpus, which was denied. Muñoz Santos v. Thomas , Case No. CV 11–6330 MMM. A panel of the Court of Appeals affirmed. Santos v. Thomas , 779 F.3d 1021 (9th Cir. 2015). Subsequently, the Court of Appeals, sitting en banc, reversed, holding that the extradition court should have considered Muñoz's evidence that the statements of Hurtado and Rosas were obtained by torture or coercion in determining whether probable cause existed. Santos v. Thomas , 830 F.3d 987 (9th Cir. 2016) (en banc).

The government now requests that this court recertify Muñoz for extradition to Mexico.

Legal Framework

In Santos , the Court of Appeals held that "evidence that a statement was obtained under torture or other coercion constitutes ‘explanatory’ evidence generally admissible in an extradition proceeding," and that "[a]n extradition court may properly consider evidence of torture or coercion in considering the competency of the government's evidence, even when the claim of coercion is intertwined with a recantation." Santos , 830 F.3d at 1005. Although the Court of Appeals made it clear that, "[i]f there is credible evidence that the statements were obtained by torture, then they are not competent evidence," Santos , 830 F.3d at 1006, it was less than clear about the standard to be applied in determining whether evidence of torture is "credible" or sufficient to undermine the competency of the government's evidence.

Not surprisingly, the parties have offered vastly divergent interpretations of Santos . The government argues that "if the allegation of torture is disputed by the requesting country and evidence presented by the fugitive does not conclusively establish the credibility of the allegations, the court's inquiry must end." [Docket No. ("Dkt.") 227 at 9]. Muñoz, on the other hand, argues that when a fugitive offers plausible evidence that a statement was procured by coercion, the requesting state should be required to introduce evidence refuting the allegation. [Dkt. 225 at 11]. According to Muñoz, the extradition court should adopt a standard that counsel asserts is employed by international courts presented with evidence allegedly obtained by torture—that is, if there is a "real risk" that evidence was procured though coercion, the extradition court must not consider such evidence. [Dkt. 225 at 11].¹ The court adopts neither analysis. Instead, it considers the evidence of coercion as follows.

The government bears the burden of establishing extraditability, so the government must show, among other things, that there is competent evidence establishing probable cause to believe that the person named in the extradition request committed the charged offense. See

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18 U.S.C. §§ 3184, 3190 ; Manta v. Chertoff , 518 F.3d 1134, 1140 (9th Cir. 2008) ; In re Extradition of Santos , 795 F.Supp.2d 966, 969–970 (C.D. Cal. 2011). The proponent of evidence generally bears the burden of establishing its admissibility. See United States v. Chang , 207 F.3d 1169, 1177 (9th Cir. 2000) (stating that the proponent of evidence has the burden of proving the foundational requirements for its admission by a preponderance of the evidence); Lust v. Merrell Dow Pharmaceuticals, Inc. , 89 F.3d 594, 598 (9th Cir.1996) (stating that the proponent of expert testimony "has the burden of proving admissibility"); Bemis v. Edwards , 45 F.3d 1369, 1373 (9th Cir. 1995) ("As the proponent of the [hearsay] evidence, Bemis had the burden of establishing personal perception by a preponderance of the evidence."); see generally Fed. R. Evid. 104. Further, in the context most analogous to this one—where the voluntariness of a confession is challenged—the Supreme Court has held that the government bears the burden of demonstrating by a preponderance of the evidence that the confession was voluntarily given. Lego v. Twomey , 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) ( "[W]hen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary."); see also Colorado v. Connelly , 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (before a custodial confession is admissible, the preliminary fact that the confessor waived his or her rights must be proved by preponderance of the evidence). Because the government bears the burden of establishing that the evidence it proffers to this court is competent, it must show by a preponderance of the evidence that the statements of Hurtado and Rosas were not obtained by coercion.

Evidence relevant to the allegations of coercion

1. Hurtado

The government relies upon a statement Hurtado gave on March 14, 2006 to a Deputy District Attorney in Tepic, Nayarit. In that statement, Hurtado said that in late July 2005, he ran into Jorge Gonzalo Lopez Chavez ("Lopez Chavez"), whom he had known for twenty years, and agreed to accompany Lopez Chavez to a paint store, where they met Rosas. [Dkt. 10 at 219]. The three men bought beers together, and then Lopez Chavez took Hurtado home. [Dkt. 10 at 220].

On August 3, 2005, Hurtado again met with Lopez Chavez, who again took Hurtado to meet with Rosas at the paint store. [Dkt. 10 at 220]. The three men bought beers together, and then went to a nightclub at the intersection of Zapata and Zacatecas streets. [Dkt. 10 at 220]. When the three men arrived at the nightclub, Muñoz, "alias El Pepe Munos," was waiting for them. [Dkt. 10 at 220]. Hurtado did not know Muñoz at that time. While the four men were drinking in the nightclub, Hurtado overheard Rosas ask Muñoz about "the job." [Dkt. 10 at 220]. As Lopez Chavez, Hurtado, and Rosas were leaving the nightclub, Hurtado saw Rocio Lopez Mendivil ("Lopez Mendivil"),² known to Hurtado as "Rosy," enter the nightclub. [Dkt. 10 at 220]. Hurtado thought that she intended to talk with Muñoz. [Dkt. 10 at 220]. When Lopez Chavez was driving Hurtado home,

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he asked what the "job" was, but Lopez Chavez did not answer. [Dkt. 10 at 220].

The next day, Hurtado went to Lopez Chavez's house to ask again about the "job" that Rosas referred to in the nightclub. Hurtado needed money and was curious. [Dkt. 10 at 220]. Lopez Chavez offered to take Hurtado to see Rosas, who could tell Hurtado what the "job" was. [Dkt. 10 at 220]. The two men met with Rosas at the same nightclub that night. [Dkt. 10 at 221]. Rosas asked Hurtado if he was up for a kidnapping, and Hurtado said yes, thinking that Rosas was kidding. [Dkt. 10 at 221].

On August 9, 2005, Hurtado met with Rosas again, who confirmed that the kidnapping plot was real, and assigned Hurtado a role in the scheme. [Dkt. 10 at 221]. Hurtado was designated to watch the house where the kidnapping was going to occur and to alert the others when the intended victim, a woman, arrived at the house. [Dkt. 10 at 221]. Rosas showed Hurtado pictures of the woman and her two daughters. [Dkt. 10 at 221]. Hurtado subsequently learned that the woman was Dignora Hermosillo Garcia ("Hermosillo"). Once Hurtado alerted the others that the victim had arrived home, Rosas was to enter the home, grab the victim, and put her in a black Nissan Altima. [Dkt. 10 at 220]. Rosas, Lopez Mendivil, and Muñoz would then drive the victim to a house Rosas had rented in Jolotemba. [Dkt. 10 at 220].

On August 18, 2005, Rosas and Lopez Chavez picked up Hurtado and told him to watch the house where the kidnapping would occur. [Dkt. 10 at 221]. Hurtado was instructed to call Rosas's cell...