In re Rodriguez Ortiz, 06 M 57.

Citation444 F.Supp.2d 876
Decision Date07 August 2006
Docket NumberNo. 06 M 57.,06 M 57.
PartiesIn the Matter of the Extradition of Octavio RODRIGUEZ ORTIZ, a/k/a Oscar Rodriguez Ortiz, a/k/a El Tatu Fugitive from the Government of the United States of Mexico.
CourtU.S. District Court — Northern District of Illinois

Robert D. Seeder, Federal Defender Program, Chicago, Counsel for Defendant.

Patrick Nagle, Assistant United States Attorney, Chicago, Counsel for the United States.

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 Octavio Rodriguez Ortiz ("Ortiz" or "Defendant"), also known as Oscar Rodriguez Ortiz or El Tatu, pursuant to the Extradition Treaty between the United States and Mexico, dated May 4, 1978, 31 U.S.T. 5059, TIAS 9656 ("Treaty"). Ortiz is charged in the State of Aguascalientes, Mexico, with committing the crime of simple intentional homicide (voluntary manslaughter) against Jose de Jesus Garcia Ramos ("Garcia Ramos"). The Government of Mexico is seeking his extradition for trial on this offense 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 July 24, 2006, an extradition hearing was conducted by this Court. Ortiz contests his extradition solely on the issue of probable cause. The Court has carefully considered 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 Ortiz should be extradited to Mexico in accordance with the Treaty. Ortiz 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, 31 U.S.T. 5059. Pursuant to 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. 31 U.S.T. 5059.

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. 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. 31 U.S.T. 5059. 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. 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. 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; 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. 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." 31 U.S.T. 5059.

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. 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. 31 U.S.T. 5059.

II. REQUEST FOR EXTRADITION OF ORTIZ

On February 28, 2006, the United States filed a complaint for extradition against Ortiz. The complaint seeks Ortiz's extradition to Mexico for voluntary manslaughter, in violation of Articles 96 and 105 Section II of the Penal Code of the State of Auguascalientes, Mexico. An initial appearance was held on March 2, 2006, and Ortiz was ordered detained.

On April 17, 2006, David Donahue, the Minister Counselor for Consular Affairs of the United States of America in Mexico, certified, under oath, certain documents, which were submitted by Mexico upon the application for Ortiz's extradition, as having been "properly and legally authenticated so as to entitle them to be received in evidence for similar purposes by the tribunals of the United Mexican States, as required by Title 18, United States Code, Section 3190." Gov. Ex. B.1

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); In re Extradition of Fulgencio Garcia, 188 F.Supp.2d 921, 925 (N.D.Il.2002).

A. JURISDICTION OF THE JUDCIAL 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. In addition, the jurisdiction of federal magistrate judges in extradition proceedings has been upheld as being consistent with Article III of the Constitution. Ward v. Rutherford, 921 F.2d 286, 289 (D.C.Cir.1990). Ortiz does not contest this Court's jurisdiction over extradition proceedings. The Court has the requisite subject matter jurisdiction over this proceeding.

B. JURISDICTION OF THE COURT OVER THE PERSON

The extradition statute further provides that jurisdiction will apply to any person found within the jurisdiction of the court. 18 U.S.C. § 3184. Ortiz was initially found, and is now in federal custody, within the jurisdiction of the Northern District of Illinois. Ortiz does not dispute this Court's jurisdiction over him. The Court has the requisite personal jurisdiction to make a determination on the extraditability of Ortiz pursuant to 18 U.S.C. § 3184.

C. IDENTITY OF FUGITIVE

Ortiz has waived the right to an identity hearing and does not dispute that he is the Octavio Rodriguez Ortiz, also known as Oscar Rodriguez Ortiz or El Tatu, sought by...

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