In re Extradition of Garcia

• Decision Date: 25 September 2011
• Docket Number: Misc. Action No. L–10–027.
• Citation: In re Extradition of Garcia, 825 F.Supp.2d 810 (S.D. Tex. 2011)
• Parties: In the Matter of the EXTRADITION OF Heriberto GARCIA.
• Court: U.S. District Court — Southern District of Texas

825 F.Supp.2d 810

In the Matter of the EXTRADITION OF Heriberto GARCIA.

Misc. Action No. L–10–027.

United States District Court, S.D. Texas, Laredo Division.

Sept. 25, 2011.

Federal Public Defender, Christina Arellano–Villarreal, John Samuel Paul, Office of the Federal Public Defender, Laredo, TX, for Heriberto Garcia.

MEMORANDUM AND ORDER

J.SCOTT HACKER, United States Magistrate Judge.

Pending before the Court is the United States Government's “Formal Extradition Request”(Dkt. No. 10) filed on behalf of the Mexican Government who is seeking to extradite Mr. Heriberto Garcia(“Respondent”) for a homicide he allegedly committed in Mexico.Also pending before the Court is Respondent's “Motion not to Extradite to Mexico (Pro Se)”(Dkt. No. 28).For the reasons set forth below, the “Formal Extradition Request”(Dkt. No. 10) is GRANTED, and Respondent is hereby CERTIFIED as extraditable.Furthermore, Respondent's pro se motion is DENIED.

I.EXTRADITION PROCESS

The process of extraditing a fugitive from the United States to Mexico is governed by the provisions of the federal extradition statute, 18 U.S.C. §§ 3181–3196, and the extradition treaty between the United States and Mexico (the “Treaty”).The Treaty provides that the United States and Mexico mutually agree to extradite fugitives who are charged with crimes in one country and subsequently found within the territory of the other.Extradition Treaty, U.S.-Mex., art. 1, May4, 1978, 31 U.S.T. 5059.Moreover, “[i]t is well settled that the terms of an extradition treaty should be liberally construed so as to effect the intention of the parties to secure the open and reciprocal surrender of fugitives to be tried for extraditable offenses.”In re Extradition of Rodriguez Ortiz,444 F.Supp.2d 876, 883(N.D.Ill.2006)(citingFactor v. Laubenheimer,290 U.S. 276, 293–94, 54 S.Ct. 191, 78 L.Ed. 315(1933));seeUnited States v. Wiebe,733 F.2d 549, 554(8th Cir.1984).

The foreign extradition process begins with the discovery of a foreign fugitive within the territory of the United States.Mexico may then request the provisional arrest of the fugitive, and the United States must comply with a valid request.Extradition Treaty, U.S.-Mex., art. 11, May4, 1978, 31 U.S.T. 5059.The request must contain a description of the person sought, a description of his or her alleged crimes, a declaration of the existence of a warrant for his or her arrest, and an undertaking to submit a formal request for extradition.Id.A judicial officer is authorized to issue a warrant for the arrest of any fugitive whose extradition is requested, upon a sworn complaint charging the fugitive with committing an extraditable offense.18 U.S.C. § 3184.If a formal request for extradition and the required supporting documents are not filed within sixty days of the apprehension of the fugitive, the provisional arrest must be terminated.Extradition Treaty, U.S.-Mex., art. 11, May4, 1978, 31 U.S.T. 5059.However, this will not prejudice the extradition once the required documents have been submitted.Id.

The second stage in the extradition process is the submission of a formal request for extradition.The required contents of a formal request for extradition, along with supplementary documents, must be submitted through diplomatic channels.Extradition Treaty, U.S.-Mex., art. 10, May4, 1978, 31 U.S.T. 5059.Among the documents required for a fugitive not yet convicted in the foreign country are a certified copy of the warrant for the fugitive's arrest issued by a judge of the requesting party, and “[e]vidence which, in accordance with the laws of the requested Party, would justify the apprehension and commitment for trial of the person sought if the offense had been committed there.”Id.Documentary evidence proffered by the Mexican government shall be admissible in evidence if it is properly authenticated and certified by the principal consular officer of the United States in Mexico.Id.;18 U.S.C. § 3190.

The next stage in the extradition process is the extradition hearing conducted by a federal court in order to hear the evidence and determine whether that evidence is “sufficient to sustain the charge under the provisions of the proper treaty or convention.”18 U.S.C. § 3184.“Extradition shall be granted only if the evidence be found sufficient according to the laws of the requested Party, ... to justify the committal for trial of the person sought if the offense of which he has been accused had been committed in that place.”Extradition Treaty, U.S.-Mex., art. 3, May4, 1978, 31 U.S.T. 5059.

Finally, where the judge determines that the evidence is sufficient to warrant extradition, the judge then certifies to the Secretary of State that the fugitive may be detained and surrendered to the requesting country and forwards all the evidence taken before him to the Secretary of State.18 U.S.C. § 3184;Ntakirutimana v. Reno,184 F.3d 419, 422(5th Cir.1999).If the fugitive was released on bail from provisional arrest, the judge must also issue a warrant for the commitment of the fugitive until surrender to Mexico can be made.18 U.S.C. § 3184.“The ultimate decision to extradite is a matter within the exclusive prerogative of the Executive in the exercise of its powers to conduct foreign affairs.”Escobedo v. United States,623 F.2d 1098(5th Cir.1980).Thus, the executive branch, through the Secretary of State, is the final arbiter of whether an individual will be detained in the United States and delivered to the requesting foreign country.See18 U.S.C. § 3186;see alsoGarcia–Guillern v. United States,450 F.2d 1189, 1192(5th Cir.1971).If extradition is granted, surrender shall then be made at such time and place as determined according to the laws of the requested country, the United States.Extradition Treaty, U.S.-Mex., art. 3, May4, 1978, 31 U.S.T. 5059.

II.REQUEST FOR EXTRADITION OF RESPONDENTHERIBERTO GARCIA

On October 15, 2010, the United States Government initiated extradition proceedings against Respondent upon filing of their “Complaint for Provisional Arrest with a View Toward Extradition”(Dkt. No. 1) on behalf of the Mexican Government.The Government alleges that Respondent is wanted for the crime of homicide by Mexican authorities.(Dkt. No. 1, ¶ 5).Specifically, he is accused of shooting and killing Alfredo Colunga–Salinas(“Mr. Colunga–Salinas”) in Las Botellas bar in Nuevo Laredo, Tamaulipas, Mexico.( Id.at ¶ 6).Upon making the required probable cause determination, this Court issued an arrest warrant for Respondent in accordance with 18 U.S.C. § 3184 and the Treaty.(Dkt. No. 2).Consequently, Respondent was arrested on October 28, 2010, and made his initial appearance before the Magistrate Court on November 1, 2010, where he was appointed counsel from the Federal Public Defender's Office.(Dkt. Nos. 3, 4).

On November 3, 2010, District JudgeMicaela Alvarez issued an oral order reassigning the case to the undersigned.( SeeNovember 3, 2010 Minute Entry).On November 4, 2010, the Court issued a Scheduling Order in this case.(Dkt. No. 9).A detention hearing was then held on November 15, 2010.At the detention hearing, the Court advised the parties that it would take the parties' arguments under advisement and would issue an order at a later date.( SeeNovember 15, 2010 Minute Entry).In the interim, the United States Government filed its “Formal Extradition Request” with supporting documentation (Exhibits 1–40) on November 16, 2010.¹( Dkt. No. 10).On November 19, 2010, Respondent filed his “Motion for Bond Pending Extradition Hearing”(Dkt. No. 11), to which the Government responded (Dkt. No. 12) on November 22, 2010.On December 30, 2010, 761 F.Supp.2d 468(S.D.Tex.2010), the Court issued its Memorandum and Order (Dkt. No. 17) denying Respondent's motion for bond.Thereafter, the Government filed its “Amended Memorandum in Support of Extradition”(Dkt. No. 19) on February 1, 2011.

On March 14, 2011, Respondent filed his “Motion not to Extradite to Mexico (Pro Se)”(Dkt. No. 28).After multiple continuances, the extradition hearing was held on April 20, 2011.At the hearing, the Government summarized the documents submitted in support of its “Formal Extradition Request.”( SeeApril 20, 2011 Minute Entry).In response, Respondent advanced five main arguments against extradition.( Id.).First, he asserted that there is alibi evidence that obliterates probable cause.Second, he argued that the identification procedures employed by the Mexican authorities are problematic.Third, he questioned the credibility of the witnesses who made statements to the Mexican authorities.Fourth, he argued that the Mexican Government failed to provide all potential evidence against him.Finally, he argued that there is some case law support for a humanitarian exception in international extradition cases.

That same day, Respondent filed his “Motion to AdmitRespondent's Exhibits [1–15] into Evidence”(Dkt. No. 30).At the extradition hearing, the Court made a partial ruling on Respondent's motion to admit exhibits into evidence and admitted Exhibits 1, 12, and 13 into evidence.( Id.).The Court withheld ruling on the remaining exhibits until Respondent provided the Court with briefing on the application of a humanitarian exception to international extradition proceedings.( Id.).Neither party presented any witness testimony.

On April 25, 2011, Respondent filed his “Motion for Issuance of Witness Subpoena Duces Tecum”(Dkt. No. 31).In his motion, Respondent requested that the Court issue an order requiring the attendance of the Custodian of Records for the Department of Public Safety/Texas Rangers in Laredo, Texas, at the next status hearing to be set by the Court.( SeeDkt. No. 31).Respondent subpoenaed the following documents:

Any and all documents and reports pertaining to the investigation of the murder of Alfredo Colunga–Salinas, a.k.a. El Cholo,...