In re Extradition of Manrique
| Decision Date | 06 February 2020 |
| Docket Number | Case No. 19-mj-71055-MAG-l (TSH) |
| Court | U.S. District Court — Northern District of California |
| Parties | IN THE MATTER OF THE EXTRADITION OF ALEJANDRO TOLEDO MANRIQUE |
In this extradition proceeding, Alejandro Toledo Manrique moves to compel the production of sixteen categories of documents. ECF No. 82. "Although there is no explicit statutory basis for ordering discovery in extradition proceedings, the extradition court has the inherent power to order such discovery procedures as law and justice require." Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988) (citing Quinn v. Robinson, 783 F.2d 776, 817 n.41 (9th Cir. 1986)). "In exercising its discretion to grant or deny discovery, an extradition court should consider that extradition proceedings are not to be converted into a dress rehearsal for trial and whether the resolution of the contested issue would be appreciably advanced by the requested discovery." Id. (citations and quotation marks omitted).
Toledo asks for four categories of discovery. First, he seeks discovery that will enable him to contest probable cause. Second, he seeks Brady evidence (see Brady v. Maryland, 373 U.S. 83 (1963)). Third, he seeks discovery related to ancillary issues that have arisen in this litigation. Fourth, he seeks the affidavit in support of the search warrant that was executed at his home when he was arrested in connection with this extradition proceeding. The Court held a hearing this morning on Toledo's motion to compel and now issues this order.
The basic function of an extradition proceeding is to determine "whether there is evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, in other words, whether there is probable cause." Santos v. Thomas, 830 F.3d 987, 991 (9th Cir. 2016) (en banc) (citations and quotation marks omitted). In assessing whether the government has met this burden, "[t]he credibility of witnesses and the weight accorded to their testimony is solely within the province of the extraditing magistrate." Mainero v. Gregg, 164 F.3d 1199, 1205-06 (9th Cir. 1999) (citation and quotation marks omitted). The Ninth Circuit has held that it is appropriate for the Court in an extradition proceeding to limit discovery to matters relevant to the existence of probable cause. See In the Matter of the Extradition of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986) ( ).
Here, Toledo argues that the following requests for production ("RFPs") are relevant to probable cause:
Toledo argues that these RFPs seek evidence related to whether the two primary witnesses against him, Jorge Barata and Josef Maiman, were coerced. The Ninth Circuit has held that an "extradition court should . . . consider[] . . . evidence of coercion because a coerced statement is not competent evidence and cannot support probable cause." Santos, 830 F.3d at 1001; see also United States v. Kollmar, 2019 WL 4261064, *4 (N.D. Cal. Sept. 9, 2019) (). Here, Peru has provided these witnesses' official statements, and in RFPs 11 and 12 Toledo seeks their subsequent statements. Toledo argues that Maiman and Barata have given interviews that seriously undermine their official statements and that the conditions under which they made their official statements cast doubt on the voluntariness of those statements. These RFPs therefore seem narrowly tailored to information that could potentially undermine the official statements. RFPs 13 and 14 seek the terms of Peru's agreements with Maiman, Barata and others. These documents would likely show the conditions under which these witnesses agreed to make their statements to Peru, which could shed light on whether there was coercion. For RFPs 11-14, the government argues that there is no evidence that the statements by Barata and Maiman were in fact coerced. However, that argument puts the cart before the horse because this discovery seeks to obtain such evidence. Whether or not the evidence responsive to RFPs 11-14 would amount to a showing of coercion, Toledo has at least articulated a basis for how that evidence could potentially undermine the existence of probable cause.
More substantively, the government argues that the requested items are not within the United States' possession, custody or control. It is true that the Court lacks authority to compel the production of documents that are only in the possession of a foreign government. See Lueck v. Sundstrand Corp., 236 F.3d 1137, 1146-47 (9th Cir. 2001) (); In re Extradition of Drayer, 190 F.3d 410, 415 (6th Cir. 1999) ( ); In re Extradition of Zhenly Ye Gon, 613 F. Supp. 2d 92, 101-02 (D.D.C. 2009) ( ).1 Nor is the Court willing to order the government to ask Peru for materials the United States doesn't have. That violates the ordinary rule of discovery that a litigant is obligated to produce only what is in its possession, custody or control. However, Toledo is entitled to more than just an unsworn assertion, offered as an alternative argument, see ECF No. 83 at 16 ( ), that the government does not possess responsive materials. Accordingly, the Court ORDERS the government to either produce all documents responsive to RFPs 11-14 that are in its possession, custody or control or to serve a declaration under penalty of perjury stating that after conducting a reasonable and diligent investigation it has determined that it has none, within 30 days. And to be clear, this order applies to the United States government, not just to the U.S. Attorney's Office for this District.
RFP 10, by contrast, has nothing to do with Toledo's case in particular or the witnesses against him. General reports on the status of human rights in Peru are inappropriate subjects of discovery because they conflict with the rule of non-inquiry. See Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2005) (). Accordingly, Toledo's motion is DENIED as to RFP 10.
Toledo says that most of his RFPs are intended to uncover Brady evidence. Those RFPsare as follows:
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