478 F.3d 588 (4th Cir. 2007), 06-6126, Ordinola v. Hackman

Docket Nº:06-6126.
Citation:478 F.3d 588
Party Name:Wilmer Yarleque ORDINOLA, Petitioner-Appellee, v. John HACKMAN, Acting United States Marshal for the Eastern District of Virginia, Respondent-Appellant.
Case Date:February 22, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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478 F.3d 588 (4th Cir. 2007)

Wilmer Yarleque ORDINOLA, Petitioner-Appellee,

v.

John HACKMAN, Acting United States Marshal for the Eastern District of Virginia, Respondent-Appellant.

No. 06-6126.

United States Court of Appeals, Fourth Circuit.

Feb. 22, 2007

         Argued Sept. 18, 2006.

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[Copyrighted Material Omitted]

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         ARGUED:

         Michael Alan Rotker, United States Department of Justice, Criminal Division, Washington, D.C., for Appellant.

         Meghan Suzanne Skelton, Office of the Federal Public Defender, Alexandria, Virginia, for Appellee.

          ON BRIEF:

         Jason E. Carter, United States Department of Justice, Criminal Division, Office of International Affairs, Washington, D.C.; Paul J. McNulty, United States Attorney, Jeanine Linehan, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellant.

         Michael S. Nachmanoff, Acting Federal Public Defender, Alexandria, Virginia, for Appellee.

         Before WILLIAMS and TRAXLER, Circuit Judges, and THOMAS E. JOHNSTON, United States District Judge for the Southern District of West Virginia, sitting by designation.

         Vacated and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge JOHNSTON concurred. Judge TRAXLER wrote a separate concurring opinion.

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         OPINION

         WILLIAMS, Circuit Judge.

         Pursuant to the bilateral Extradition Treaty between the United States and Peru, see Extradition Treaty, U.S.-Peru, July 26, 2001, S. Treaty Doc. No 107-6 ("Extradition Treaty"), the United States Government seeks to extradite Wilmer Yarleque Ordinola, a Peruvian national, to Peru so that he can stand trial for the alleged crimes of aggravated homicide, aggravated kidnapping, forced disappearance of persons, inflicting major intentional injuries, and delinquent association. Before a magistrate judge, Ordinola claimed, inter alia, that he was not extraditable because his alleged crimes fit within the Treaty's exception for political offenses. The magistrate judge, acting as the finder of fact, disagreed, finding that Ordinola's offenses could not be defined as political for purposes of the Treaty. Ordinola filed a petition for a writ of habeas corpus, and the district court granted the writ, determining that the political offense exception barred extradition in this case. The Government appealed. For the reasons identified below, we conclude that the magistrate judge did not err in finding Ordinola extraditable. We therefore vacate the district court's grant of the writ and remand for reentry of a Certification of Extraditability.

         I.

         A.

         In the late 1960s, Abimael Guzman, a Peruvian philosophy professor and leader of a faction of Peru's Communist Party, founded the radical left-wing guerrilla movement known as Sendero Luminoso, or "the Shining Path." The Shining Path has since been described as a "highly organized guerrilla organization with a Maoist communist ideology dedicated to the violent overthrow of Peru's democratic government and social structure." Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir.1994). By the mid-1980s, the Shining Path had grown from a relatively small regional movement into a much larger and more dispersed one that engaged in numerous acts of violence against Peruvian government officials, peasants, journalists, professors, teachers, and others. At its height, the Shining Path was characterized as "[s]ophisticated, well-organized," and "probably the most brutal, vindictive, and elusive terrorist insurgency in the Western Hemisphere." (J.A. at 138 (The Threat of the Shining Path to Democracy in Peru: Hearing Before the Subcomm. on Western Hemisphere Affairs of the H. Comm. on Foreign Affairs, 102d Cong. 47 (1992) (statement of Gabriela Taranzona-Sevillano, Visiting Prof. of Int'l Studies, Davidson Coll.)).)

         In 1990, newly elected Peruvian president Alberto Fujimori enlisted Vladimiro Lenin Montesinos, former Advisor to the Peruvian National Intelligence Service, as a military advisor. Together, Fujimori and Montesinos provided the military with vast power and resources to fight the Shining Path, 1 responding to the group's insurgency with tactics that nearly matched the Shining Path's in brutality. The result was Fujimori's creation of a military establishment that was described as "institutionally corrupt," clouded by "the worst human rights record in the hemisphere," and characterized by "a persistent record of indiscriminate action against rural populations" stemming from a "belief that popular terror, in and of itself, is a recipe for success [against the Shining Path]." (J.A.

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at 110, 112 (The Threat of the Shining Path to Democracy in Peru: Hearing Before the Subcomm. on Western Hemisphere Affairs of the H. Comm. on Foreign Affairs, 102d Cong. 19, 21 (1992) (statement of Gordon H. McCormick, senior social scientist, RAND Corp.)).)

         During 1991, in connection with this strategy, Fujimori created a special operations paramilitary squad known as the Grupo Colina, or "Colina Group," and commissioned the group to combat the Shining Path. 2 Ordinola, a veteran of the Peruvian army with experience in military intelligence, was assigned to the group and later became "group chief," meaning that he was coordinator for one of the Colina Group's three subgroups.

         B.

         Peru's extradition request alleges that Ordinola, while serving in the Colina Group, kidnapped and murdered noncombatant civilians on four separate occasions in 1991 and 1992. The allegations related to these four incidents are recounted below.

         1. The Barrios Altos Case.

         On the evening of November 3, 1991, two trucks containing Colina Group agents, including Ordinola, traveled to the Barrios Altos neighborhood in Lima, Peru, where a pollada--a social function typically held for fund-raising purposes--was taking place in the yard of an apartment complex. Dressed in ski masks and carrying machine guns with silencers, Ordinola and around ten other agents left the trucks, entered the apartment complex yard, and began shooting at the people attending the pollada. The agents killed fifteen people, including an eight-year-old boy, and seriously injured four others. 3

         Julio Chiqui Aguirre, a Colina Group agent who participated in the attack, identified Ordinola as an active participant in the shootings and as the killer of the eight-year-old boy. In connection with the massacre, Peru has charged Ordinola with

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Aggravated Homicide, Inflicting Major Intentional Injuries, and Delinquent Association, in violation of Articles 108, 121, and 317 of the Peruvian Criminal Code.

         2. La Cantuta Case.

         On July 17, 1992, Ordinola and other Colina Group agents traveled to La Cantuta University. The agents, who were armed, wearing ski masks, and carrying shovels and lime, 4 entered the student dormitories and forced approximately fifteen students outside. One of the agents singled out nine of the fifteen students because they allegedly had terrorist connections. The agents also forced a university professor out of his home because of an alleged link to terrorism.

         Ordinola and the other Colina Group agents loaded the professor and nine students into several trucks and drove them to a location on the Ramiro Priale Highway. There, the agents made them dig trenches, forced them into the holes, shot and killed them, and buried them. One or two days later, several agents, including Ordinola, exhumed the bodies, moved them to another location, and incinerated them because they were concerned that the bodies might be discovered. 5 For this incident, Peru has charged Ordinola with Aggravated Homicide, Aggravated Kidnapping, and Forced Disappearance of Persons, in violation of Articles, 108, 152, and 320 of the Peruvian Criminal Code.

         3. The Barrientos Case.

         On May 1, 1992, Peruvian Army General Juan Rivero Lazo summoned leaders of the Colina Group to a meeting with Jorge Fung Pineda, a private property owner who had friends in the Peruvian military. Pineda told the agents that some of his workers at his cotton mill were demanding higher wages and improved machinery. Pineda asked the agents to link the workers to terrorism and to "teach them a good lesson." (J.A. at 23.)

         Later that day, Ordinola and other Colina Group agents, while dressed as civilians, armed themselves and kidnapped nine of the workers, taking one person from the road while he was riding a bicycle and the other eight from their homes. Ordinola and the other agents killed all nine people and buried them at a nearby farm. Before they left, the agents painted "written marks and phrases regarding the 'Shining Path' with red paint" around the scene to make it appear that the crimes were perpetrated by the Shining Path. (J.A. at 9, 24.) For this incident, Peru has charged Ordinola with Aggravated Homicide and Aggravated Kidnapping, in violation of Articles 108 and 152 of the Peruvian Criminal Code.

         4. The Bustamante Case.

         In June 1992, Pedro Yauri Bustamante was living in Huacho, Peru, and working as director of the daily news program called, "Punto Final," which aired on a

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local radio station. On the show, Bustamante and his call-in listeners frequently criticized the Fujimori government. The Fujimori administration had classified Bustamante as a subversive activist because he had previously been investigated for terrorist activities.

         On June 22, 1992, Major Santiago Martin Rivas called members of the Colina Group, including Ordinola, to a meeting and told them that the...

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