Avila-Ramos v. Kammerzell

• Decision Date: 28 June 2018
• Docket Number: No. 17-1014,17-1014
• Citation: 893 F.3d 1243
• Parties: Mirella Ivonne AVILA–RAMOS, Petitioner–Appellant, v. John L. KAMMERZELL, United States Marshal for the District of Colorado; Kenneth Deal, Acting United States Marshal for the District of Colorado, Respondents–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

893 F.3d 1243

Mirella Ivonne AVILA–RAMOS, Petitioner–Appellant,

v.John L. KAMMERZELL, United States Marshal for the District of Colorado; Kenneth Deal, Acting United States Marshal for the District of Colorado, Respondents–Appellees.

No. 17-1014

United States Court of Appeals, Tenth Circuit.

FILED June 28, 2018

Robert T. Fishman of Ridley, McGreevy & Winocur, P.C., Denver, Colorado, for Petitioner–Appellant.

J. Bishop Grewell, Assistant United States Attorney (and Robert C. Troyer, United States Attorney, on the brief), Denver, Colorado, for Respondents–Appellees.

Before BACHARACH, KELLY, and MORITZ, Circuit Judges.

KELLY, Circuit Judge.

Petitioner–Appellant Mirella Ivonne Avila–Ramos appeals from the district court’s denial of habeas corpus relief from an extradition certification order. On appeal, she challenges the magistrate judge’s and district court’s probable cause rulings. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm because the magistrate judge adequately found probable cause that Ms. Avila–Ramos committed aggravated homicide, the crime identified in the extradition request.

Background

Ms. Avila–Ramos is wanted for aggravated homicide in Chihuahua, Mexico. Supp. R. 26. According to the warrant for her arrest, Ms. Avila–Ramos plotted with Arturo Heriberto Herrera Rey, her paramour, to murder her husband. Id. at 38. Ms. Avila–Ramos’s husband, who had survived an earlier attempt on his life, was on his way to a hospital appointment when he was attacked and killed by a hired gun. Id. at 31, 38. An investigation implicated Ms. Avila–Ramos and Mr. Rey in the hit, and Mr. Rey was convicted of aggravated homicide for his involvement in the crime. Def.’s Ex. B at 32, In re Extradition of Avila–Ramos, No. 1:15–mj–01087–NYW (D. Colo. Oct. 7, 2015), ECF No. 178–1. Now, Mexico requests Ms. Avila–Ramos’s extradition from the United States to face charges for her participation in the plot. 4 R. 20–21; Supp. R. 43.

After a hearing, a magistrate judge certified Ms. Avila–Ramos as extraditable. In re Extradition of Avila–Ramos, No. 1:15–mj–01087–NYW (D. Colo. May 6, 2016), ECF No. 181. Among the magistrate judge’s findings was that there was sufficient evidence to establish probable cause that Ms. Avila–Ramos committed aggravated homicide. Id. at 16. Ms. Avila–Ramos filed a petition for a writ of habeas corpus challenging the extradition certification order, 1 R. 8, which the district court denied, Avila–Ramos v. Kammerzell, 228 F.Supp.3d 1196, 1204 (D. Colo. 2017). In upholding the magistrate judge’s probable cause determination, though, the district court characterized Ms. Avila–Ramos’s offense as conspiring to murder her husband (rather than as aggravated homicide). See id. at 1203.

On appeal, Ms. Avila–Ramos argues that (1) a finding of probable cause for conspiring to commit murder does not subject her to extradition for aggravated homicide, the offense identified in the extradition request, and (2) the magistrate judge based her probable cause determination on inadequate evidence.

Discussion

Habeas review of a probable cause determination in an extradition proceeding is limited to the narrow issue of "whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Peters v. Egnor, 888 F.2d 713, 717 (10th Cir. 1989) (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925) ). In other words, the petitioner’s appeal "must fail if there is ‘any evidence of probable cause.’ " Id. (quoting Theron v. U.S. Marshal, 832 F.2d 492, 501 (9th Cir. 1987), abrogated on other grounds by United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) ). On appeal, we "review the district court’s legal determinations de novo and its findings of fact for clear error." Smith v. United States, 82 F.3d 964, 965 (10th Cir. 1996). Here, where the district court made no additional factual findings concerning probable cause, our review of the district court’s judgment is purely de novo. See Santos v. Thomas, 830 F.3d 987, 1001 (9th Cir. 2016) ("We review the district court’s judgment de novo. In this context, that means that, with respect to the extradition court, we stand in the same position as did the district court." (citation omitted) ).

A. The Magistrate Judge Found Probable Cause for the Crime Identified in the Extradition Request

Ms. Avila–Ramos first argues that she is not extraditable because probable cause was not found for the crime identified in the extradition request. The extradition request charges her with aggravated homicide, but she contends that probable cause was found for conspiracy to commit murder, which allegedly constituted an impermissible alteration of the charges underlying the extradition request.

Ms. Avila–Ramos did not raise this argument in her habeas petition to the district court, presumably because the magistrate judge did find probable cause that Ms. Avila–Ramos committed aggravated homicide, the crime identified in the extradition request. See In re Extradition of Avila–Ramos, slip op. at 19 ("This court CERTIFIES to the United States Secretary of State that Respondent Mirella Ivonne Avila Ramos is extraditable for the charged offense of aggravated homicide pursuant to 18 U.S.C. § 3184...." (emphasis added) ). The sole basis for her argument is that the district court inexplicably characterized her offense as conspiring to murder her husband, not as aggravated homicide. See Avila–Ramos, 228 F.Supp.3d at 1197 ("The United Mexican States (‘Mexico’) accuse Petitioner Mirella Ivonne Avila–Ramos (‘Avila–Ramos’) of conspiring to have her husband murdered in Mexico." (emphasis added) ); id. at 1203 (upholding the magistrate judge’s finding of probable cause that Ms. Avila–Ramos committed the offense of "conspiring to murder her husband" (emphasis added) ).

Ms. Avila–Ramos is not entitled to relief, however, simply because the district court mischaracterized the charge against her. The scope of our review is limited to the sufficiency of the magistrate judge’s order, which we review without deference to the district court’s legal determinations. See Santos, 830 F.3d at 1001 ; Smith, 82 F.3d at 965. As the magistrate judge unambiguously found probable cause for the offense identified in the extradition request (aggravated homicide), the charges contained in the extradition request have not been altered.¹

B. The Magistrate Judge’s Probable Cause Determination Was Adequate

Next, Ms. Avila–Ramos contests the adequacy of the magistrate judge’s probable cause determination. She argues that (1) although the government produced evidence that she conspired to kill her husband, it did not produce any evidence that she was directly responsible for her husband’s death and (2) the magistrate judge relied on improper evidence, namely the criminal proceedings against Mr. Rey.

The first issue is whether, as a matter of law, the magistrate judge could have found probable cause that Ms. Avila–Ramos committed aggravated homicide from the evidence in the extradition request.² Ms. Avila–Ramos argues that the evidence supports, at most, a conspiracy to kill her husband, which is a distinct offense from aggravated homicide. But Ms. Avila–Ramos ignores the fact that conspiring to commit a crime is also a theory of liability for the substantive offense. See United States v. Bowen, 527 F.3d 1065, 1077 & n.10 (10th Cir. 2008) (describing Pinkerton coconspirator liability); see also United States v. Zackery, 494 F.3d 644, 649 (8th Cir. 2007) (holding that a defendant does not need to be charged as a conspirator to be convicted of a substantive offense based on Pinkerton coconspirator liability). The same holds true for aiding and abetting the commission of a crime. See Bowen, 527 F.3d at 1077 & n.10 ; see also United States v. Day, 700 F.3d 713, 722 (4th Cir. 2012) (ruling that "aiding and abetting is a theory of liability, not a separate offense," and that the rule of specialty in the extradition treaty between the United States and Mexico does not require the requesting state to specify a particular theory of liability). As a result, the government did not need to produce evidence that Ms. Avila–Ramos was directly responsible for her husband’s death; it could produce evidence of coconspirator or aiding and abetting liability instead.

Here, either theory supports the magistrate judge’s probable cause determination. The extradition request contains sworn statements from family members, a private investigator, forensics experts, and Mexican law enforcement officers, which together allege that Ms. Avila–Ramos (1) was having an affair with Mr. Rey, who arranged the assassination; (2) paid the gunman by helping him burglarize her husband’s house; and (3) reported her husband’s whereabouts to Mr. Rey to facilitate the assassination. See 4 R. 20–27; Supp. R. 146–242, 253–61. In short, the request alleges that Ms. Avila–Ramos was part of—and assisted in—an agreement to kill her husband. Consequently, the evidence provides grounds to believe that Ms. Avila–Ramos is liable for her husband’s death either as a coconspirator or as an aider and abettor.

The second issue is whether the magistrate judge relied on improper evidence when determining probable cause. When reviewing the sufficiency of evidence in an extradition proceeding, a magistrate judge’s role is "to determine whether there is competent evidence to justify holding the accused to await trial,...