In re Sarellano

• Decision Date: 15 October 2015
• Docket Number: Case No. M–15–75–CG.
• Citation: 142 F.Supp.3d 1182
• Parties: In re EXTRADITION OF Esteban Rios SARELLANO.
• Court: U.S. District Court — Western District of Oklahoma

142 F.Supp.3d 1182

In re EXTRADITION OF Esteban Rios SARELLANO.

Case No. M–15–75–CG.

United States District Court, W.D. Oklahoma.

Signed Oct. 15, 2015.

Susan M. Otto, Federal Public Defender, Oklahoma City, OK, for Esteban Rios Sarellano.

MEMORANDUM OPINION AND ORDER

CHARLES B. GOODWIN

, United States Magistrate Judge.

The United Mexican States has asked the United States of America through diplomatic channels to arrest and extradite Esteban Rios Sarellano, who is accused of aggravated homicide in the November 2003 death of Gonzalo Sifuentes Martinez. See Compl. (Doc. No. 1) ¶¶ 3–4, 6. Having considered the full record, the parties' briefs, and the applicable law, the undersigned Magistrate Judge finds that aggravated homicide is an extraditable offense under the extradition treaty presently in force between the United States and Mexico, and that there is probable cause to believe that Mr. Rios committed the offense charged within Mexico's jurisdiction. See 18 U.S.C. § 3184

. Accordingly, the court CERTIFIES Esteban Rios Sarellano as subject to extradition under 18 U.S.C. § 3184.

I. Legal Standards

The procedures for extraditing a fugitive from the United States to Mexico are governed by the federal extradition statutes, 18 U.S.C. §§ 3181

–3196, and the 1978 extradition treaty between the United States of America and the United Mexican States. In re Extradition of Vargas, 978 F.Supp.2d 734, 738 (S.D.Tex.2013). As relevant here, Mexico initiates the diplomatic process for such an extradition by submitting to the U.S. Department of State a formal request for the extradition of a person charged with or found guilty of an extraditable offense committed within Mexico's jurisdiction. See Extradition Treaty, Mex.-U.S., arts. I, X, May 4, 1978, 31 U.S.T. 5059 (entered into force Jan. 25, 1980) ; Vargas, 978 F.Supp.2d at 739. Once the Department of State determines that the request is sufficient, see Extradition Treaty, supra, art. XII, the appropriate United States Attorney files a complaint in federal district court charging the alleged fugitive with having committed an extraditable offense and seeking a warrant for that person's arrest pending an extradition hearing before an authorized judicial officer. 18 U.S.C. § 3184 ; see Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir.2005).

The federal statutes establish a two-step procedure that divides responsibility for extradition between an authorized judicial officer and the Secretary of State. United States v. Kin–Hong, 110 F.3d 103, 109 (1st Cir.1997)

(citing 18 U.S.C. §§ 3184, 3186 ). The judge's role in these proceedings is limited to determining whether the accused is subject to extradition under the terms of 18 U.S.C. § 3184 and the applicable extradition treaty. See 18 U.S.C. § 3184 ; Sidali v. INS, 107 F.3d 191, 194–95 (3d Cir.1997) ; Lo Duca v. United States, 93 F.3d 1100, 1104 (2d Cir.1996)

; Martin v. Warden, Atlanta Pen., 993 F.2d 824, 828 (11th Cir.1993). If, after a hearing on "the evidence of criminality against a person sought to be extradited," Prasoprat, 421 F.3d at 1012, the judge

deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, ... he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.

18 U.S.C. § 3184

. The judge "has no discretionary decision to make" in proceedings under § 3184. Prasoprat, 421 F.3d at 1012 (internal quotation marks omitted). "Rather, if the evidence is sufficient to sustain the charge" on which extradition is sought, the judge must "certify the individual as extraditable" and issue a warrant for his or her detention. Id. (alteration and internal quotation marks omitted).

If such a certification is issued, the Secretary of State then decides whether the alleged fugitive should be surrendered to foreign officials. Kin–Hong, 110 F.3d at 109

; see 18 U.S.C. § 3186 (providing that the Secretary of State "may order the person committed under section[ ] 3184 ... to be delivered to any authorized agent of such foreign government[ ] to be tried for the offense of which [the person is] charged"). Unlike the extradition judge, "[t]he Secretary exercises broad discretion and may properly consider myriad factors affecting both the individual defendant" and foreign relations in determining whether to issue a warrant of surrender. Martin, 993 F.2d at 829.

II. Background

In April 2014, Mexico asked the United States through diplomatic channels to arrest and extradite Mr. Rios, who is charged in the State of Zacatecas with aggravated homicide in the November 2003 shooting death of Gonzalo Sifuentes Martinez. See Compl. ¶¶ 3–4, 6. The United States Attorney for the Western District of Oklahoma filed a Complaint for Extradition on March 5, 2015, and the Court issued an arrest warrant the same day (Doc. No. 2). Mr. Rios was arrested in Oklahoma City, Oklahoma, on May 21, 2015 (Doc. No. 14). He has been detained since that time. Following Mr. Rios' request for a continuance to allow transcription of certain documents, the undersigned held an extradition hearing on June 30, 2015 (Doc. No. 21). The parties then submitted supplemental briefs. See Doc. Nos. 24, 32.

III. Discussion

The United States bears the burden of establishing, among other things, that (1) the presiding judge has authority to conduct this extradition proceeding, (2) aggravated homicide is an extraditable offense under an extradition treaty in full force and effect between the United States and Mexico, and (3) competent evidence provides probable cause to believe that Mr. Rios committed aggravated homicide as charged in the complaint for extradition. See In re Extradition of Santos, 795 F.Supp.2d 966, 969–70 (C.D.Cal.2011)

; In re Extradition of Mainero, 990 F.Supp. 1208, 1216 (S.D.Cal.1997) (citing Bingham v. Bradley, 241 U.S. 511, 36 S.Ct. 634, 60 L.Ed. 1136 (1916) ). In making these determinations, the presiding judge must consider properly authenticated documents that the United States submitted with its complaint.

In re Extradition of Chan Seong–I, 346 F.Supp.2d 1149, 1161 (D.N.M.2004)

. Mr. Rios' right to submit evidence in this proceeding, on the other hand, is committed to the presiding judge's sound discretion and generally limited to presenting evidence that "explains away" the government's evidence or "completely rebuts the existence of probable cause." Vargas, 978 F.Supp.2d at 748 ; see also Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.1973) ; In re Extradition of Cheung, 968 F.Supp. 791, 794 n. 6 (D.Conn.1997).

A. Jurisdiction

"The extradition statutes expressly allow federal magistrate judges to hear and decide extradition cases if ‘authorized to do so by a court of the United States.’ " In re Extradition of Nezirovic, No. 7:12–mc–39, 2013 WL 5202420, at *3 (W.D.Va. Sept. 16, 2013)

(quoting 18 U.S.C. § 3184 ). This Court customarily authorizes magistrate judges to decide extradition cases, and neither party has questioned the undersigned's authority to conduct the proceedings in this case. See In re Procedure for Referral of Civil and Criminal Matters to Full Time Magistrates of the United States District Court for the Western District of Oklahoma, Misc. Order No. 22 (W.D.Okla. Feb. 19, 1991); e.g., Smith v. United States, 82 F.3d 964, 965 (10th Cir.1996).¹

See generally DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir.1999) ("[A] party's failure to object to allocation of an issue to a magistrate judge forfeits that position, even if it turns out that the magistrate judge should not have participated." (citing Peretz v. United States, 501 U.S. 923, 936–37, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) )). Further, Mr. Rios does not dispute that he is the individual charged in the United States' Complaint for Extradition or that the undersigned may exercise personal jurisdiction over him in this proceeding. 18 U.S.C. § 3184 ; see Resp.'s Br. (Doc. No. 24) at 1–2, 7.

B. Extraditable Offense

On June 9, 2014, Judge Sergio Mercado Camarillo, the Second Trial Court Judge for Family and Criminal Matters of the Judicial District of Sombrerete, Zacatecas, issued an arrest warrant charging Mr. Rios with aggravated homicide in the November 22, 2003 shooting death of Gonzalo Sifuentes Martinez.² See Gov't's Ex. 3 (admitted into evidence at hearing of June 30, 2015). Aggravated homicide is the act of intentionally taking another person's life "with premeditation, treachery, unfair advantage, or betrayal." Gov't's Ex. 2 (citing Zacatecas Crim.Code tit. 17, arts. 293, 301) (admitted into evidence at hearing of June 30, 2015).

The parties agree that the U.S.-Mexico extradition treaty is in full force and effect and that aggravated homicide—a crime most analogous to murder as defined in 18 U.S.C. § 1111

—is an extraditable offense under that treaty. Extradition Treaty, supra, art. 2, app. ¶ 1; see also In re Extradition of Fuentes, No. 13–mj–1026, 2013 WL 2153537, at *2 (D.Colo. May 16, 2013) (citing 18 U.S.C. § 1111 ) (finding the crime of aggravated homicide an extraditable offense under the Extradition Treaty); In re Extradition of Diaz Medina, 210 F.Supp.2d 813, 816 (N.D.Tex.2002) (same).

According to the June 9, 2014 arrest warrant, Judge Mercado Camarillo found sufficient evidence to charge Mr. Rios with aggravated homicide by "treachery and unfair advantage." Gov't's Ex. 3 (emphasis added). To satisfy its burden under § 3184

, however, the United States need only establish probable cause to believe that Mr. Rios intentionally killed Sifuentes Martinez by treachery or unfair surprise. See Diaz Medina, 210 F.Supp.2d at 819–20. The former "exists when...