Matter of Extradition of Mainero

• Decision Date: 19 December 1997
• Docket Number: No. 96MG1798 (AJB).,96MG1798 (AJB).
• Citation: 990 F.Supp. 1208
• Court: U.S. District Court — Southern District of California
• Parties: In the Matter of the EXTRADITION OF Emilio Valdez MAINERO, aka Ricardo Gonzalez Leon, Ricardo Emilio Valdez-Mainero and Emilio Ricardo Valdez.

990 F.Supp. 1208

In the Matter of the EXTRADITION OF Emilio Valdez MAINERO, aka Ricardo Gonzalez Leon, Ricardo Emilio Valdez-Mainero and Emilio Ricardo Valdez.

No. 96MG1798 (AJB).

United States District Court, S.D. California.

December 19, 1997.

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Michael Pancer, Law Office of Michel Pancer, San Diego, CA, for Emilio Ricardo Valdez.

Findings of Fact, Conclusions of Law and Certification of Extraditability

BATTAGLIA, United States Magistrate Judge.

In the proceeding before this Court, the Republic of Mexico (hereafter Mexico), through the United States government, seeks the extradition of United States citizen, EMILIO VALDEZ MAINERO, alleged to have committed crimes in Mexico. The matter proceeded to an extradition hearing on June 30, 1997 before the Honorable Anthony J. Battaglia, United States Magistrate Judge.

The interests of Mexico were represented by the United States through the United States Department of Justice, by United States Attorney Alan D. Bersin and Assistant United States Attorney Gonzalo P. Curiel. EMILIO VALDEZ MAINERO was represented by retained counsel Michael Pancer.

The court, for reasons explained below, grants the petition, finding the detainee extraditable.

Background

EMILIO VALDEZ MAINERO (hereinafter "Valdez" or "Respondent")¹ is accused by Mexico of having been involved with or committing various crimes in violation of Mexican laws. Pursuant to an extradition treaty between Mexico and the United States, Treaty 31 UST 5059, TIAS 9656 ("Treaty"), and under federal laws supplementing and implementing such treaties, 18 U.S.C. § 3184, et seq., the United States issued a provisional arrest warrant for the Respondent, signed by Magistrate Judge Anthony J. Battaglia on September 30, 1996.² The warrant was issued on a Complaint charging Respondent with carrying a firearm exclusively reserved for the military in violation of Articles 160 and 162, paragraph 3, Criminal Code for the Federal District. This resulted in the arrest of Valdez on September 30, 1996. Valdez was ordered detained following arraignment. A Supplemental Complaint was filed and Respondent was arraigned thereon on October 16, 1996. The Supplemental Complaint charged Respondent with criminal association under Article 164, paragraph 1 and Article 13, section 2 of the Penal Code for the Federal District. Valdez moved the Court for release under the special circumstances doctrine. The Court denied the motion.³

The United States filed certified documents in support of the extradition request at various times, the first of which was on December 4, 1996. The certified documents included diplomatic note 001831 dated November 25, 1996 from the Embassy of Mexico formally requesting the extradition of Respondent on the firearms and conspiracy charges. Additional documentation⁴ (specifically related to the first degree murder and carrying a firearm exclusive to the Army, Navy and Air Force) were submitted by diplomatic note No. 000012 dated January 3 1997. The filing of certified documents permitted Mexico to go forward with the extradition proceeding under the Treaty. Prior to the June 30, 1997 evidentiary hearing on the extradition requests, there were numerous other filings by the United States and by counsel for the detainee as well as several status hearings.

On July 29, 1997, Respondent filed a Motion to Reopen Evidence in this matter. Specifically, Respondent sought "all witness statements submitted in General Gutierrez Rebollo's case to determine whether or not there is additional relevant testimony." While the motion was denied, the Court did find good cause to order the production of further evidence described by the United States in its responsive papers as becoming available since the June 30, 1997 extradition hearing. Specifically, the Court ordered the United States to file copies of videotapes of Alejandro Hodoyan's deposition; evidence including Respondent's statements regarding the circumstances surrounding the 1997 abduction of Alejandro Hodoyan and the genesis of the March 3, 1997 declaration by Alejandro Hodoyan;⁵ and, all statements, recordings, transcriptions and memoranda of interviews by the assistant U.S. Attorney and federal agents of Alejandro Hodoyan.⁶ The Court also directed the United States to request from Mexico, a signed statement of Seargent Ruiz and evidence of all dates of arrest after September 1, 1996 of witnesses Soto, Alejandro Hodoyan, Francisco Cabrera Castro and Gerardo Cruz Pacheco.⁷

Mexico has filed the videotapes, the evidence concerning Respondent's statements regarding the 1997 abduction of Alejandro Hodoyan and the genesis of the March 3, 1997 Declaration by Alejandro Hodoyan, as well as the statements by Alejandro to U.S. agents. Mexico did not produce a signed statement of Sergeant Ruiz or evidence of dates of arrest of the referenced witnesses.⁸ Additional written argument was entertained from counsel and submissions in this regard were completed on October 14, 1997. On October 22, 1997, the Court issued an Order directing the United States Attorney to produce photographic evidence referenced in witness statements and related to the issue of the identity of Respondent. The date of production for the photographic evidence was set for November 5, 1997⁹ and later extended with properly authenticated and certified originals being filed on December 1, 1997.

Discussion

Description of Alleged Offenses and Involvement of Respondent

The Republic of Mexico seeks to extradite Valdez to answer the following charges:

(1) Carrying a firearm exclusive to the Army, Navy and Air Force on or about April 9, 1996 in violation of Article 83, Section II, in accordance with Article 11, Section (b), of the Federal Law of Mexico on Weapons and Explosives;¹⁰

(2) Criminal Association between 1994 and September 14, 1996 in violation of Article 164, Paragraph 1 in accordance with Article 13, Section II, of the Penal Code for the Federal District;¹¹ and (3) First Degree Murder of Jesus Gallardo Vigil and Jesus Sanchez Angulo in violation of Article 302; Article 303, Sections I and III, Article 315 and Article 320 of the Penal Code for the Federal District.

It is alleged that Respondent was involved in criminal activities within the Arellano-Felix drug trafficking organization (hereinafter AFO). Respondent's role is alleged to have included, among other things, the planning and carrying out of assassinations of people perceived to be enemies of the AFO, including rival drug traffickers and law enforcement officials. It is also alleged that Respondent was in charge of cocaine and marijuana shipments for the AFO and as a leading member of the organization, was responsible for assigning code names to the other members.

Concerning the murder and firearms charge, it is alleged that on April 9, 1996, at approximately 9:30 p.m., in the restaurant at the Holiday Inn in Toluca, Mexico, Jesus Gallardo Vigil, aka "El Bebe", (hereinafter "Gallardo"), and Jesus Sanchez Angulo (hereinafter "Sanchez") were shot and killed by Respondent and Fabian Martinez Gonzalez, aka "Tiburon", (hereinafter "Martinez"). According to the allegations, earlier on April 9, 1996, Valdez, Martinez, and Isaac Contreras Ayala, aka "Calaco", (hereinafter "Contreras") were awaiting the arrival of Gerardo Cruz Pacheco, aka "Capitan", (hereinafter "Cruz") at the Glorieta del Angel. Valdez, Martinez and Contreras, were carrying small weapons in a white Volkswagen. Martinez instructed Contreras and Cruz to drive a navy blue Cutlass to the Holiday Inn in Toluca. The others drove in a white Volkswagen.

At approximately 9:00 p.m., the two cars arrived at the Holiday Inn, Toluca, Valdez and Martinez got out of the car. Valdez told Contreras, "Wait for me here and when you see us leave the parking lot in the white Volkswagen, make a wall so that we won't be followed".

At approximately 9:30 p.m. Valdez and Martinez encountered Gallardo whom Valdez planned to assassinate. Valdez shot and killed Gallardo as well as Sanchez who happened to be in the corridor at the time of Gallardo's murder.

Valdez and Martinez then fled the Holiday Inn in the white Volkswagen. The others in the navy blue Cutlass also left the Holiday Inn and caught up with the white Volkswagen at the village of San Mateo Atenco. There, Valdez told the group, "`The Baby' paid me off. Nobody threatens my brother because the moron who does it, dies."¹²

Treaty Requirements and Necessary Documentation

Under Article 10 of the Treaty, the request for extradition is required to contain the description of the offense for which extradition is requested and shall be accompanied by:

(1) A statement of the facts of the case;

(2) The text of the legal provisions describing the essential elements of the offense;

(3) The text of the legal provisions describing the punishment for the offense;

(4) The text of the legal provisions relating to the time limit on the prosecution of the offense; and,

(5) The facts and the personal information of the person sought which will permit his identification and, where possible, information concerning his location;

(6) A certified copy of the warrant of arrest issued by the judge or judicial officer [in Mexico]; and,

(7) Evidence which, in accordance with the laws of the requested party, would justify the apprehension and commitment for the trial of the person sought if the offense had been committed there, (i.e., probable cause).

Respondent does not dispute that the Treaty requirements have been met with regard to these items with three exceptions. As to item 7, the sufficiency of the evidence, Respondent contends that the probable cause element has not been met and, therefore, there is no justification for his apprehension and commitment for extradition to Mexico. The sufficiency of the evidence (i.e., probable cause) will be discussed hereinafter.

Respondent...