623 F.2d 1098 (5th Cir. 1980), 79-1480, Escobedo v. United States

Docket Nº:79-1480, 79-1490.
Citation:623 F.2d 1098
Party Name:Gaspar Eugenio Jimenez ESCOBEDO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Gustavo CASTILLO, Petitioner-Appellant, v. Donald D. FORSHT, U. S. Marshal, Respondent-Appellee.
Case Date:August 14, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1098

623 F.2d 1098 (5th Cir. 1980)

Gaspar Eugenio Jimenez ESCOBEDO, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

Gustavo CASTILLO, Petitioner-Appellant,

v.

Donald D. FORSHT, U. S. Marshal, Respondent-Appellee.

Nos. 79-1480, 79-1490.

United States Court of Appeals, Fifth Circuit

August 14, 1980

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[Copyrighted Material Omitted]

Page 1100

John H. Lipinski, Miami, Fla., for Escobedo.

R. Jerome Sanford, Asst. U. S. Atty., Miami, Fla., Murray R. Stein, U. S. Dept. of Justice, Washington, D. C., for United States.

Weiner, Tunkey, Robbins, & Ross, P. A., Jeffrey S. Weiner, Miami, Fla., M. Cherif Bassiouni, Chicago, Ill., for Castillo.

Appeals from the United States District Court for the Southern District of Florida.

Before MORGAN, ANDERSON and RANDALL, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

This is an appeal from orders denying requests for habeas corpus relief in international extradition proceedings. On December 8, 1977, the Government of Mexico, pursuant to the United States-Mexico Extradition Treaty of 1899 1, requested extradition of two United States citizens, Gaspar Eugenio Jimenez Escobedo and Gustavo Castillo (petitioners), for prosecution on charges of murder, attempted murder, and attempted kidnapping. In response to this request, petitioners were arrested in the Southern District of Florida. After holding an evidentiary hearing under 18 U.S.C.

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§ 3184 2, a United States Magistrate, on May 31, 1978, issued a Certificate of Extraditability and Order of Commitment for both petitioners. The magistrate found, inter alia, that petitioners are the individuals sought by Mexico, that the crimes for which petitioners are sought are extraditable offenses under the Treaty, and that there is probable cause to believe that petitioners committed those crimes in Mexico.

On June 2 and June 21, 1978, Escobedo and Castillo, respectively, filed the instant petitions for writs of habeas corpus, seeking to block their extradition. By orders entered December 26, 1978, the Southern District of Florida denied the petitions. This appeal followed. Petitioners urge that the district court erred in not granting the writ because: (1) the evidence offered at the extradition hearing did not establish probable cause to believe that they committed the crimes charged; (2) the offenses charged by Mexico are political in character; (3) petitioners, as United States nationals, are not subject to extradition; and (4) certain humanitarian considerations bar extradition. 3

SCOPE OF REVIEW

The scope of habeas corpus review of a magistrate's extradition order is quite narrow. Such review is limited to determining "whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925); Gusikoff v. United States, 620 F.2d 459, 461 (5th Cir. 1980); Brauch v. Raiche, 618 F.2d 843, 847 (1st Cir. 1980); Garcia-Guillern v. United States, 450 F.2d 1189, 1191 (5th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972). The writ is not a means for rehearing the magistrate's findings. Fernandez v. Phillips, 268 U.S. at 312, 45 S.Ct. at 542; Garcia-Guillern v. United States, 450 F.2d at 1191-92.

PROBABLE CAUSE

As stated, petitioners are charged by the Mexican government with murder, attempted murder and attempted kidnapping. These charges arise out of an alleged attempt by petitioners, along with Orestes Ruiz Hernandez 4 to kidnap the Cuban Consul in Merida, Mexico, Daniel Ferrer Fernandez, on July 23, 1976. During the attempt, an associate of the Consul, Artagnan Diaz y Diaz, was shot and killed. Although bullets were allegedly fired at the Consul, he escaped without injury. Escobedo was arrested at the Mexico City airport the day after the incident. He subsequently escaped

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from a Mexican jail and fled to the United States. Castillo was never apprehended by Mexican authorities.

In reviewing the existence of probable cause to sustain the charges against petitioners "or, in other words, the existence of a reasonable ground to believe the accused guilty," our function "is to determine whether there is any competent evidence tending to show probable cause. The weight and sufficiency of that evidence is for the determination of the committing court." Garcia-Guillern v. United States, 450 F.2d at 1192; Gusikoff v. United States, supra, 620 F.2d at 462. 5 In this case, the evidence introduced at the extradition hearing to prove probable cause consisted of various documents submitted by Mexico in support of its extradition request. 6

With respect to Escobedo, the documents show that explosives and firearms were found in his luggage at the time of his arrest. 7 A ballistics report contained in the Extradition Documents concludes that the bullet that killed Diaz y Diaz was fired from one of these firearms. 8 With respect to Castillo, the documents contain a third party's report of a deposition given by the Cuban Consul, Fernandez, to a Mexican official on July 24, 1976. 9 The report states that during the deposition, the Consul was shown a picture of Castillo, and that he "recognized him as one of the persons who performed the attack." 10 At this deposition, and in a statement given to authorities on the day of the attack 11, the Consul is also reported as saying that one of the attackers approached him with a gun, that he thought bullets were fired at him during the incident, and that the attackers attempted to kidnap him. Furthermore, the documents indicate that Castillo's passport was found in Escobedo's luggage at the time of Escobedo's arrest. 12 We hold that this evidence establishes probable cause to believe that both petitioners committed the crimes charged. 13

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Petitioners contend, however, that the Mexican Extradition Documents should not have been admitted at their extradition hearing; they argue that these documents would have been inadmissible for the purpose of proving probable cause in a Florida court. This argument is without merit. State law does not control the reception of evidence at extradition hearings. Collins v. Loisel, 259 U.S. 309, 317, 42 S.Ct. 469, 472, 66 L.Ed. 956 (1922); Shapiro v. Ferrandina, 478 F.2d at 901-02; Sayne v. Shipley, 418 F.2d at 685. The admissibility of the Mexican Extradition Documents is governed by 18 U.S.C. § 3190, which provides:

§ 3190. Evidence on hearing

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 the 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.

Since the Mexican Extradition Documents were properly certified by the United States Ambassador to Mexico, they were authenticated, and admissible under section 3190. See, e.g., Shapiro v. Ferrandina, 478 F.2d at 901-02; Jimenez v. Aristeguieta, 311 F.2d 547, 562 (5th Cir. 1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415 (1963).

Petitioners next contend that the English translation of the Mexican Extradition Documents contains various inaccuracies and therefore should not be relied upon in assessing probable cause. We reject this argument. After receiving the testimony of an interpreter who appeared on petitioners' behalf, Supp. Record 129-139, the magistrate found that petitioners had failed to impeach the accuracy of the translation. We agree with this finding. In any event, even if petitioners' interpretation of the Documents were accepted, the Documents still support the presence of probable cause.

Finally, petitioners argue that the evidence used to establish probable cause did not satisfy Article VIII of the Extradition Treaty. Article VIII states:

When . . . the fugitives shall have been merely charged with a crime or offense, (an) . . . authenticated and attested copy of the warrant for his arrest in the country where the crime or offense is charged to have been committed, and of the depositions upon which such warrant may have been issued, must accompany the requisition as aforesaid.

(Emphasis added). Petitioners contend that Article VIII was breached because none of the documents submitted by Mexico constitute "depositions" in the strictly legal sense, namely:

The testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission...

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