In re Extradition of Fulgencio Garcia

• Citation: 188 F.Supp.2d 921
• Decision Date: 04 March 2002
• Docket Number: No. 01 M 307.,01 M 307.
• Parties: In the Matter of The EXTRADITION OF Nicolas FULGENCIO GARCIA, Fugitive from the Government of the United States of Mexico.
• Court: U.S. District Court — Northern District of Illinois

188 F.Supp.2d 921

In the Matter of The EXTRADITION OF Nicolas FULGENCIO GARCIA, Fugitive from the Government of the United States of Mexico.

No. 01 M 307.

United States District Court, N.D. Illinois, Eastern Division.

March 4, 2002.

Theodore T. Poulos, Cotsirilos Tighe & Streiker, Ltd., Chicago, IL, for Nicolas Fulgencio Garcia.

Joan B. Safford, Deputy United States Attorney, Chicago, IL, for the United States.

AMENDED MEMORANDUM OPINION AND ORDER GRANTING CERTIFICATION OF EXTRADITABILITY AND ORDER OF COMMITMENT

MORTON DENLOW, United States Magistrate Judge.

The Government of the United Mexican States ("Mexico") has requested the extradition of Nicolas Fulgencio Garcia ("Fulgencio") pursuant to the Extradition Treaty between the United States and Mexico, dated May 4, 1978, 31 U.S.T. 5059, TIAS 9656 ("Treaty"). Fulgencio is charged in the State of Michoacan, Mexico, with committing the crimes of Lesiones (Injuries) and Homicidio (Homicide) against his common-law wife Irene Gonzalez Villagomez ("Gonzalez"). The Government of Mexico is seeking his extradition for trial on these offenses and an order of commitment to the custody of the United States Marshal pending final disposition of this matter by the Secretary of State.

On January 10, 2002, an extradition hearing was conducted by the Court. Fulgencio contests his extradition primarily on the argument that the evidence submitted would be inadmissible in a federal criminal trial and did not constitute competent evidence upon which to base a finding of probable cause under the Treaty.

The Court has carefully considered the testimony of the witness who appeared at the hearing, the exhibits introduced into evidence, the written submissions of the parties and the fine arguments of counsel. The Court finds there is sufficient competent evidence to sustain a finding of probable cause and Fulgencio should be extradited to Mexico in accordance with the Treaty. Fulgencio is committed to the custody of the United States Marshal pending final disposition of this matter by the Secretary of State.

I. THE 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 et seq., and the extradition treaty between the United States and Mexico, TIAS 9656. Under 18 U.S.C. § 3181, the provisions of the federal extradition statute apply during the existence of a valid extradition treaty. Under Article 1 of the Treaty, 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. (Treaty p. 3)¹.

The process begins with the discovery of a foreign fugitive within the territory of the United States. Under Article 11 of the Treaty, Mexico may then request the provisional arrest of the fugitive, and the United States must comply with a valid request. (Id. at 10). The request must contain a description of the person sought, a description of his alleged crimes, a declaration of the existence of a warrant for his arrest, and an undertaking to submit a formal request for extradition. (Id.). 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. (Id.). However, this will not prejudice the extradition once the required documents have been submitted. (Id.). Likewise, 18 U.S.C. § 3184 authorizes a judicial officer to issue a warrant for the arrest for any fugitive whose extradition is requested, upon a sworn complaint charging the fugitive with committing an extraditable offense.

The second stage in the extradition process is the submission of a formal request for extradition. Article 10 of the Treaty lists the required contents of a formal request for extradition, and requires that it be submitted through diplomatic channels. (Treaty p. 8). In addition to the formal request, supplementary documents must be provided. Among the documents required for a fugitive not yet convicted 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. at 8-9). Article 10 further directs that these documents shall be received into evidence if they are certified by the principal consular officer of the United States in Mexico. (Id. at 9-10). Likewise, the federal extradition statute provides that documentary evidence proffered by a foreign government requesting extradition will be admissible if it is certified to be properly authenticated by the principal consular officer of the United States in the requesting country. 18 U.S.C. § 3190 (2001). See also In re Assarsson, 635 F.2d 1237, 1245-46 (7th Cir.1980).

The next step 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 provisions of the proper treaty or convention." 18 U.S.C. § 3184 (2001). Article 3 of the Treaty states that "[e]xtradition 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." (Treaty p. 5).

Finally, where the judge determines that the evidence is sufficient to warrant extradition, he certifies this to be the case and forwards all the evidence taken before him to the Secretary of State. 18 U.S.C. § 3184. The judge also issues a warrant for the commitment of the fugitive until surrender to the foreign government can be made. Id. The final decision on whether or not to extradite the fugitive is reserved to the Secretary of State. 18 U.S.C. § 3186 (2001). Likewise, Article 14 of the Treaty provides that if extradition is granted, surrender shall then be made at such time and place as determined according to the laws of the requested country. (Treaty p. 12).

II. REQUEST FOR EXTRADITION OF NICOLAS FULGENCIO GARCIA

Fulgencio was initially arrested and detained on unrelated charges by the Police Department in Hodgkins, Illinois. (Complaint & 7g.)². When federal authorities learned that there was an outstanding warrant issued by Mexico for his arrest for Homicide, and that the Ambassador from Mexico was making a request for provisional arrest, Fulgencio was taken into federal custody. (Id.). A warrant for provisional arrest was issued by this Court on October 15, 2001. An initial appearance was held on October 15, 2001, and Fulgencio was ordered detained pending receipt of a formal request for extradition.

Mexico then submitted a formal request for extradition³ with supporting documents⁴ to the American Consulate in Mexico City. The formal request for extradition and supporting documents were received and authenticated by Miriam K. Hughes, Consul General of the United States of America in Mexico, on Dec. 7, 2001. (Gov. Ex. B p. 1)⁵. They were then submitted to the State Department in Washington, D.C. by the Embassy of Mexico on December 10, 2001. (Gov. Ex. A p. 1)⁶. They were certified by Ashley S. Deeks, Attorney Advisor in the Office of the Legal Advisor of the State Department, acting on behalf of Secretary of State Colin L. Powell, on Dec. 11, 2001. (Id. at 1-3). The certification declares that there is an extradition treaty between the United States and Mexico, TIAS 9656, which is in full force and effect. (Id.). The certification further declares that Miriam K. Hughes was the principal consular officer of the United States in Mexico, and that the documents submitted by Mexico had been certified by her to be properly authenticated pursuant to 18 U.S.C. § 3190. (Id. at 3).

III. PRELIMINARY FINDINGS

The Court finds the formal request for extradition and supporting documents are in compliance with the content requirements of Article 10 of the Treaty. The Court further finds the formal request for extradition and supporting documents were submitted within the time frame provided for in Article 11 of the Treaty. Finally, the Court finds the documents submitted were properly certified by the principal consular officer of the United States in Mexico. Therefore, the documents submitted are admissible for the purpose of this extradition proceeding, as per Article 10 of the Treaty and 18 U.S.C. § 3190.

IV. EXTRADITION OF DEFENDANT TO MEXICO IS PROPER

The general purpose of an extradition hearing under 18 U.S.C. § 3184 is to provide a judicial determination that extradition is proper under the circumstances. A request for extradition will be granted if the following findings are made:

1. The judicial officer has jurisdiction to conduct an extradition proceeding,

2. The Court has jurisdiction over the fugitive,

3. The person before the Court is the fugitive named in the request for extradition,

4. There is an extradition treaty in full force and effect,

5. The crimes for which surrender is requested are covered by that treaty, and

6. There is competent legal evidence to support the finding of probable cause as to each charge for which extradition is sought.

Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925); Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir.1981); Lindstrom v. Gilkey, No. 98 C 5191, 1999 WL 342320, at *2 (N.D.Ill. May 14, 1999).

A. JURISDICTION OF THE JUDICIAL OFFICER

The statute governing extradition proceedings, 18 U.S.C. § 3184, authorizes a broad class of judicial officers to hear extradition cases. Federal magistrate judges are expressly authorized to hear and decide extradition cases if "authorized to do so by a court of the United States." 18 U.S.C. § 3184 (2001). The local...