830 F.3d 987 (9th Cir. 2016), 12-56506, Santos v. Thomas

Docket Nº:12-56506
Citation:830 F.3d 987
Opinion Judge:Jay S. Bybee, Circuit Judge:
Party Name:JOSE LUIS MUNOZ SANTOS, Petitioner-Appellant, v. LINDA R. THOMAS, Warden, Respondent-Appellee
Attorney:Matthew B. Larsen (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Petitioner-Appellant. Mark R. Yohalem (argued) and Aron Ketchel, Assistant United States Attorneys; Robert E. Dugdale, Chief, Cr...
Judge Panel:Before: Sidney R. Thomas, Chief Judge and M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Mary H. Murguia and John B. Owens, Circuit Judges. Opinion by Judge Bybee; Dissent by Judge Callaha...
Case Date:July 28, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 987

830 F.3d 987 (9th Cir. 2016)

JOSE LUIS MUNOZ SANTOS, Petitioner-Appellant,

v.

LINDA R. THOMAS, Warden, Respondent-Appellee

No. 12-56506

United States Court of Appeals, Ninth Circuit

July 28, 2016

Argued and Submitted En Banc January 12, 2016, Pasadena, California

Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cv-06330-MMM. Margaret M. Morrow, District Judge, Presiding.

REVERSED AND REMANDED.

SUMMARY[*]

Habeas Corpus / Extradition

The en banc court reversed the district court's judgment denying habeas relief from a magistrate judge's order certifying Jose Luis Munoz Santos's extradition to Mexico on kidnapping charges, and remanded, in a case in which Munoz sought to introduce evidence that incriminating statements made against him by his co-conspirators were obtained by torture and therefore could not support the probable cause required to expedite.

The en banc court held that the co-conspirators' claims that their prior statements implicating themselves and Munoz were obtained under duress are not contradictory, but explanatory, because they go to the competence of the government's evidence, and may therefore be considered by the extradition court.

The en banc court concluded that it could not resolve on the record before it whether, assuming arguendo that the coconspirators' confessions must be excluded, there is sufficient evidence of probable cause to affirm. The en banc court remanded for the district court to return the case to the extradition court for further proceedings to address the competency and the sufficiency of the government's evidence.

Dissenting, Judge Callahan, joined by Judge Ikuta, wrote that the majority reviews the extradition court's decision for technical error, exceeding the scope of judicial review under well-established Supreme Court precedent; risks converting a probable cause hearing into a mini-trial with all the evidentiary trappings, contrary to Supreme Court precedent; and puts to test on American soil the reliability of the foreign nation's evidence, which is an assessment that the governing treaty reserves for Mexican judicial authorities.

Matthew B. Larsen (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Petitioner-Appellant.

Mark R. Yohalem (argued) and Aron Ketchel, Assistant United States Attorneys; Robert E. Dugdale, Chief, Criminal Division; Eileen M. Decker, United States Attorney; United States Attorney's Office, Los Angeles, California; for Respondent-Appellee.

Jennifer Pasquarella, ACLU Foundation of Southern California, Los Angeles, California; Steven M. Watt, Human Rights Program, ACLU Foundation, New York, New York; Melissa Hooper, Human Rights First, New York, New York; Baher Azmy, Center For Constitutional Rights, New York, New York; for Amici Curiae the American Civil Liberties Union, American Civil Liberties Union of Southern California, Human Rights First, and Human Rights Watch.

William J. Aceves, California Western School of Law, San Diego, California; Robert E. Kohn, Kohn Law Group, Santa Monica, California; for Amicus Curiae Juan E. Méndez, United Nations Special Rapporteur on Torture.

Before: Sidney R. Thomas, Chief Judge and M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Mary H. Murguia and John B. Owens, Circuit Judges.

OPINION

Jay S. Bybee, Circuit Judge

Jose Luis Munoz Santos (" Munoz" ), appeals the district court's denial of habeas relief from a magistrate judge's order certifying Munoz's extradition to Mexico on charges of kidnapping.1 In his extradition hearing, Munoz sought to introduce evidence that incriminating statements made against him by his co-conspirators were obtained by torture, and therefore could not support the probable cause required to extradite. The extradition court concluded that the evidence of coercion was not admissible in the extradition hearing, because the allegations were contained in statements in which the witnesses had recanted their previous incriminating statements. The court concluded that this rendered the allegations " contradictory" evidence--as opposed to " explanatory" evidence--and the allegations were therefore inadmissible in an extradition proceeding. See Collins v. Loisel, 259 U.S. 309, 316-17, 42 S.Ct. 469, 66 L.Ed. 956 (1922). The district court denied Munoz's habeas petition, and a panel of this court affirmed, relying in part on our decision in Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2005) (en banc) (per curiam). We took this case en banc to determine the admissibility in an extradition hearing of evidence suggesting that other evidence presented in the hearing was obtained through coercion or torture.

We hold that evidence of coercion is explanatory, and may be considered by the extradition court, even if the evidence includes a recantation. We reverse the judgment of the district court, and we remand to the district court to issue the writ of habeas corpus unless the extradition court certifies Munoz's extraditability after proceedings consistent with this opinion.

I. THE EXTRADITION PROCESS

The procedural history of this case will be easier to navigate with an overview of the extradition process in mind. Extradition law is based on a combination of treaty law, federal statutes, and judicial doctrines dating back to the late nineteenth century. See 18 U.S.C. § § 3181-96; see also Ronald J. Hedges, International Extradition: A Guide for Judges 1 n.3 (Federal Judicial Center 2014) (" FJC Manual" ) (" The law of extradition in the United States is well established, dating back to the late nineteenth and early twentieth centuries." ).

Authority over the extradition process is shared between the executive and judicial branches. The process begins when the foreign state seeking extradition makes a request directly to the U.S. Department of State. If the State Department determines that the request falls within the governing extradition treaty, a U.S. Attorney files a complaint in federal district court indicating an intent to extradite and seeking a provisional warrant for the person sought. See

Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006); see also 18 U.S.C. § 3184. Once the warrant is issued, the district court, which may include a magistrate judge, conducts a hearing to determine " whether there is 'evidence sufficient to sustain the charge under the provisions of the proper treaty or convention,' or, in other words, whether there is probable cause." Vo, 447 F.3d at 1237 (quoting in part 18 U.S.C. § 3184).

The Supreme Court has described these extradition hearings to determine probable cause as akin to a grand jury investigation or a preliminary hearing under Federal Rule of Criminal Procedure 5.1. See, e.g., Charlton v. Kelly, 229 U.S. 447, 461-62, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Benson v. McMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 32 L.Ed. 234 (1888); FJC Manual at 10. As the First Circuit described the process: In probable cause hearings under American law, the evidence taken need not meet the standards for admissibility at trial. Indeed, at a preliminary hearing in federal court a " finding of probable cause may be based upon hearsay in whole or in part." Fed. R. Crim. P. 5.1(a). This is because a preliminary hearing is not a minitrial of the issue of guilt; rather, its function is the more limited one of determining whether probable cause exists to hold the accused for trial. An extradition hearing similarly involves a preliminary examination of the evidence and is not a trial.

United States v. Kin-Hong, 110 F.3d 103, 120 (1st Cir. 1997) (citations omitted). We have said that the extradition court's review is limited to determining, first, whether the crime of which the person is accused is extraditable, that is, whether it falls within the terms of the extradition treaty between the United States and the requesting state, and second, whether there is probable cause to believe the person committed the crime charged. See, e.g., Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir. 2000), overruled on other grounds by Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (en banc); see also

Zanazanian v. United States, 729 F.2d 624, 625-26 (9th Cir. 1984) (describing the inquiry as " whether: [1] the extradition judge had jurisdiction to conduct proceedings; [2] the extradition court had jurisdiction over the fugitive; [3] the extradition treaty was in full force and effect; [4] the crime fell within the terms of the treaty; and [5] there was competent legal evidence to support a finding of...

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