In re Extradition of Santos

• Decision Date: 21 December 2006
• Docket Number: No. CV 06-5092 MMM(AJW).,CV 06-5092 MMM(AJW).
• Citation: 473 F.Supp.2d 1030
• Court: U.S. District Court — Central District of California
• Parties: In the Matter of the EXTRADITION OF Jose Luis Munoz SANTOS, a/k/a Jose Luis Hernandez Santos.

473 F.Supp.2d 1030

In the Matter of the EXTRADITION OF Jose Luis Munoz SANTOS, a/k/a Jose Luis Hernandez Santos.

No. CV 06-5092 MMM(AJW).

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

December 21, 2006.

Joseph N. Akrotirianakis, U.S. Attorney Office, Riverside, CA, for Plaintiff.

Lara A Bazelon, Federal Public Defenders Office, Los Angeles, CA, for Defendant.

ORDER REGARDING SANTOS'S MOTION FOR RELEASE ON BAIL

WISTRICH, United States. Magistrate Judge.

Proceedings

Acting on behalf of the Republic of Mexico, the United States of America (the "United States" or the "government") Med a complaint on May 12, 2006 seeking a provisional arrest warrant and the extradition of Jose Luis. Munoz Santos ("Santos"). Magistrate Judge Carla Woehrle issued a provisional arrest warrant on that date, and Santos was arrested shortly thereafter. On May 17, 2006, Santos made his initial appearance before Magistrate Judge Margaret A. Nagle, who ordered that he be detained. A formal extradition request was filed on August 16, 2006.

On October 17, 2006, Santos filed a motion to dismiss this case ("Santos's MTD"). The government filed an opposition on November 6, 2006 ("Opp. to MTD"). A hearing was conducted on November 30, 2006. During that hearing, Santos indicated that he would request release on bail if the extradition complaint were not dismissed. In an order issued on November 30, 2006, this court denied Santos's motion to dismiss without prejudice to its renewal at a later stage of this case.

On December 6, 2006, Santos filed a motion for release on bail ("Motion for Bail") pending the extradition hearing in this case. The government filed an opposition. On December 7, 2006, the court held a hearing, on Santos's request for release on bail.

Based on the papers filed in this action and the arguments of counsel, Santos's motion for release on bail is granted, subject to the conditions of release described at the end of this order.

Factual background

The circumstances presented in this extradition case are highly unusual and problematic. The procedural facts are somewhat complex, but the core of the problem is that Mexico has requested Santos's extradition on the basis of arrest warrants which have been invalidated by its own courts because they fail to establish probable cause to believe that Santos committed the offenses charged. In seeking Santos's extradition to Mexico, the government in effect is asking this court to find that probable cause exists to believe that Santos committed the charged offenses on the basis of evidence which Mexico's own courts have twice found insufficient for that purpose.

According to the papers submitted in support of Santos's motion to dismiss and motion for release on bail, a warrant for his arrest on charges of kidnaping and aggravated homicide was issued by a judge in Mexico on March 17, 2006. That warrant served as a basis for the request by the Republic of Mexico to the United States for Santos's provisional arrest pursuant to article 11 of the Extradition Treaty Between the United States of America and the United Mexican States, May 4, 1978, 31 U.S.T. 5059, T.I.A.S. No. 9656 ("Extradition Treaty"), art. 11. Article 11 states, in pertinent part:

In the case of urgency, either Contracting Party may request, through the diplomatic channel, the provisional arrest of an accused or convicted person. The application shall contain . . . a declaration of the existence of a warrant of arrest issued by a competent judicial authority or a judgment of conviction issued against the person sought.

[Extradition Treaty, art. 11, section 1 (italics added)¹].

Santos was taken into federal custody on or about May 17, 2006. On May 24, 2006, a federal court in Mexico issued a written decision granting Santos's request for a writ of "amparo."² The amparo nullified and voided the warrant for Santos's arrest on the grounds that it was procedurally defective and because there was evidence that Santos had been tortured by Mexican police. [Santos's MTD 3-4].

The prosecutor in Mexico attempted to cure the defects in the first arrest warrant by applying for a second arrest warrant, which was issued in Mexico on May 25, 2006. The formal extradition request filed on August 16, 2006 relied on the second arrest warrant.

Santos sought a writ of amparo with respect to the second arrest warrant. On August 16, 2006 (the same day the formal request for Santos's extradition was filed), a federal court in Mexico granted Santos's request and issued an amparo invalidating the second arrest warrant. [Santos's MTD 4]. A certified translation of the portion of the amparo invalidating the second arrest warrant summarizes court's conclusions as follows:

[I]t is proper to conclude that with the issuance of the arrest warrant which is the subject of the [wrongful] acts claimed by the appellant, the appellant's right to judicial security as provided for in Article 16 of the Federal Pact [the Federal Constitution] was violated as it relates to his probable responsibility in the crime attributed to him since the issuing authority did not state a solid foundation for the elements required in the manner that all courts must do in issuing their determination relative to proper foundation and reasons for the same.

[Santos's MTD, Ex. B at 1 (bracketed material in original)]. The amparo further ordered the judge who issued the arrest warrant to make null and void the arrest warrant ... and in it's [sic] place he may issue a new determination which answers and meets the specific requirements outlined in this decision; that is, that he restate the foundation for the crimes of homicide, as well as that of kidnaping . . . and being free within his jurisdiction to resolve according to the law, the probable responsibility of the appellant in the commission of the offense aforementioned ....

[Santos's MTD, Ex. B at 1 (emphasis in original)]. In deciding whether to issue a new warrant, the judge below was admonished to take into consideration

the totality of the evidence that was brought forth and is part of the record, and to make a determination regarding how that evidence relates to the acts impugned (inclupatory and exculpatory evidence), and in this case state"the reasons why it has evidentiary value and how it is taken into account and the weight given to it. Also, should the court arrive at the conclusion that the appellant has probable responsibility for the crimes aforementioned, or for any one of them, the court must, state in a clear and precise manner the manner in which the appellant participated, and the reasons why the court has arrived at this conclusion.

[Santos's MTD, Ex. B at 1]. As authority for its holding, the court quoted a 1996 "Precedent Decision" by the Second Panel Court for the Sixth District stating that an "arrest warrant [is] illegal if the judge does not state the reasons for the determination of type of criminal offense and the probable responsibility of the person to whom it is issued." [Santos's MTD, Ex. B at 2].

The amparo also held that the "effect of the amparo will extend to the [wrongful] acts claimed against the Attorney General of the State and the General Director of the State Police .. . given their vested role as the law enforcement authorities...." [Santos's MTD, Ex. B at 3 (bracketed text in original)].

The amparo concludes with a "resolution" stating that "the justice of the union shelters and protects Jose Luis Munoz Santos against the order of apprehension and its execution . . .." [Santos's MTD, Ex. B at 3].

The Mexican prosecutor sought appellate review of the amparo invalidating the second arrest warrant. That appeal remains pending.

The parties' contentions

In support of his motion for release on bail, Santos contends that there are "several special circumstances that warrant bail in this case." [Motion for Bail 3].³ Santos argues that bail is appropriate because Mexican courts have twice invalidated the arrest warrant used a basis for Mexico's extradition request and have concluded that the warrants were not supported by competent evidence establishing probable cause to believe he committed the charged offenses, and because the United States cannot meet its burden to show that Santos is extraditable absent a valid arrest warrant and a probable cause finding. Santos also argues that the likelihood of further substantial delay in these extradition proceedings constitutes a special circumstance warranting bail. Santos maintains that his release on bail will not jeopardize his appearance for his extradition hearing nor pose any danger to the community.

The government argues that Santos has not demonstrated special circumstances warranting bail, and that the government's interest in complying with its obligations under the Extradition Treaty overrides even a small risk that Santos will not appear for his extradition hearing.

Discussion

Standard for release on bail in extradition cases

"[T]here is a presumption against bail in an extradition case and only `special circumstances' will justify bail." Salerno v. United States, 878 F.2d 317, 317 (9th Cir.1989)(citing Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948 (1903)); (accord, In re Extradition of Kirby, 106 F.3d 855, 858 (9th Cir.1996)). The party seeking release on bail has the burden of showing that special circumstances exist. See Salerno, 878 F.2d at 317; United States v, Taitz, 130 F.R.D. 442, 444 (S.D.Cal.1990).⁴ The party seeking release on bail in an international extradition case also must demonstrate that there is no risk he will fail to appear for further extradition proceedings and that he is not a danger to the community, but those factors are not special circumstances which alone justify release on bail. See In re Extradition of Smyth, 976 F.2d 1535, 1536 (9th Cir.1992)(reversing an order granting release on bail where the district court found that the potential extraditee was...