In re Vargas, Misc. Action No. L–13–213.

Citation978 F.Supp.2d 734
Decision Date18 October 2013
Docket NumberMisc. Action No. L–13–213.
PartiesIn the Matter of the EXTRADITION OF Luis Castaneda VARGAS.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

OPINION TEXT STARTS HERE

Jesus M. Dominguez, Attorney at Law, Laredo, TX, for Luis Castaneda Vargas.

MEMORANDUM & ORDER

J. SCOTT HACKER, United States Magistrate Judge.

Before the Court is the United States Government's Extradition Request made on behalf of the Mexican Government, which seeks the extradition of LUIS CASTANEDA VARGAS (Respondent) for an alleged homicide committed in Mexico. For the reasons set forth below, the Court is of the opinion that the Extradition Request should be granted, and thus Respondent will be certified as extraditable.

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”). Pursuant to 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. Extradition Treaty, U.S.-Mex., art. 1, May 4, 1978, 31 U.S.T. 5059. “It 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) (citing Factor v. Laubenheimer, 290 U.S. 276, 293–94, 54 S.Ct. 191, 78 L.Ed. 315 (1933)); see also United 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, May 4, 1978, 31 U.S.T. 5059. To be valid, a request must contain a description of the person sought, a description of their alleged crimes, a declaration regarding the existence of a warrant for their 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 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, May 4, 1978, 31 U.S.T. 5059. However, a termination of the provisional arrest 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 formal request for extradition, along with the supplementary documents, must be submitted through diplomatic channels. Extradition Treaty, U.S.-Mex., art. 10, May 4, 1978, 31 U.S.T. 5059. Among the supplementary 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 18 U.S.C. § 3190.

The next stage is an extradition hearing, where the federal court must hear the evidence and determine whether it 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, May 4, 1978, 31 U.S.T. 5059. As will be discussed more fully below, where extradition is sought from the United States, the evidence must support a finding of probable cause that the person committed the extraditable offense.

Finally, having determined 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 to the Secretary all the evidence taken. 18 U.S.C. § 3184; Ntakirutimana v. Reno, 184 F.3d 419, 422 (5th Cir.1999). “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, 1105 (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 country. See18 U.S.C. § 3186; see also Garcia–Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir.1971). If extradition is granted, surrender shall 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, May 4, 1978, 31 U.S.T. 5059.

II. Background
A. Federal proceedings

On May 3, 2013, the Government initiated extradition proceedings against Respondent upon the filing of a “Complaint for Arrest for the Purpose of Extradition.” (Dkt. No. 2). According to the complaint, Mexico has invoked the Treaty and asks for Respondent's provisional arrest. ( Id. at ¶ 4). Respondent is wanted on a Mexican arrest warrant for the crime of homicide. ( Id. at ¶ 5). More specifically, Respondent is accused of shooting and killing Daniel Rodriguez Ramos on a public street corner in Nuevo Laredo, Tamaulipas, Mexico. ( Id. at ¶ 6).

An arrest warrant issued from this Court (Dkt. No. 3), and Respondent was arrested on May 7, 2013 in Laredo, Texas (Dkt. No. 5). At his initial appearance the following day, Respondent was appointed counsel and advised of his rights and the charges against him.1 (Dkt. No. 6). He was also ordered detained. ( Id.). On May 10, 2013, the Court issued a Scheduling Order, which set a date for an extradition hearing. (Dkt. No. 9).

Thereafter, the Government filed a notice regarding the submission of the two exhibits it intended to introduce at the pending hearing.2 (Dkt. No. 13). Exhibit 1 is titled “Certificate to be Attached to Documentary Evidence Accompanying Requisitions in the United States for Extradition American Foreign Service,” and Exhibit 2 is titled United States Department of State, Certification of Authenticity.” Exhibit 2 is comprised of documents authenticating the attached formal extradition request, which was made by the Government of Mexico through a diplomatic note on July 5, 2013. Exhibit 1 is comprised of the supporting documentation required by the Treaty, including the reports of Mexican officials who investigated the homicide at issue and written witness statements. The supporting documents were authenticated in accordance with 18 U.S.C. § 3190 by John B. Brennan, Minister Counselor for Consular Affairs.

The extradition hearing was held as scheduled on September 16, 2013. Admitted into evidence, without objection, were Exhibits 1 and 2. (Sept. 16th Hr'g at 9:21, 9:23–24 a.m.). The Government addressed the elements that must be met for extradition and moved for a probable cause finding based on the documentary evidence, which it went on to summarize. ( Id. at 9:22–9:25, 9:39–9:40 a.m.). Respondent then advanced two main arguments against extradition.

Respondent's arguments are as follows. First, Respondent challenges probable cause on the basis that the written statement of the one eyewitness to the homicide arguably contradicts the findings in the report of the victim's autopsy. ( Id. at 9:25–9:30, 9:42–9:44 a.m.). The eyewitness claimed that he saw Respondent shoot at the victim, who raised his hands to shield himself. The autopsy report indicates that the victim was shot in the back. Next, Respondent argues non-extraditability on the basis that he was overcharged by Mexican authorities. ( Id. at 9:31–9:34, 9:44 a.m.). According to Respondent, Mexico recognizes two forms of homicide: the simple homicide charged here and a lesser form involving the presence of mitigating circumstances like self-defense. Respondent argues, based on the circumstances, that the lesser form of homicide should apply. This lesser charge supposedly carries a minimum sentence of only six months. Respondent's position is that this imprisonment term renders the lesser form of homicide a non-extraditable offense. Respondent's arguments are addressed below.3

B. Crime and investigation

The homicide at issue occurred on August 2, 2003 in Nuevo Laredo, Tamaulipas, Mexico. The main eyewitness to the crime was an Adrian Perez Garcia. According to Mr. Perez, he was driving south with his wife and three minor children on Reynaldo Garza Avenue at around 9:30 or 10:00 in the evening. (Ex. No. 4 at 1).4 Approaching the corner of Pino Suarez Street, they encountered a backup in traffic. ( Id.). A man exited from the car at the front of the line and signaled the rest of the drivers to wait, apparently because he was experiencing engine failure. ( Id. at 1–2). Mr. Perez recognized this man to be Respondent, whom he had known for two years as a former co-worker at a Kentucky Fried Chicken in Laredo, Texas.5 ( Id.).

Upon restarting his car's engine, Respondent made a west turn onto Pino Suarez Street. ( Id. at 2). However, just as he passed the street...

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