U.S. v. Castaneda-Castillo

• Decision Date: 17 August 2010
• Docket Number: No. 10M-1013-JGD,10M-1013-JGD
• Citation: 739 F.Supp.2d 49
• Parties: UNITED STATES of America v. David E. CASTANEDA-CASTILLO.
• Court: U.S. District Court — District of Massachusetts

739 F.Supp.2d 49

UNITED STATES of America

v.David E. CASTANEDA-CASTILLO.

No. 10M-1013-JGD.

United States District Court, D. Massachusetts.

Aug. 17, 2010.

Andrew E. Lelling, United States Attorney's Office, Boston, MA, for Plaintiff.

Ian Gold, Federal Public Defender Office, William P. Joyce, Joyce and Associates, P.C., Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON APPLICATION FOR BAIL

DEIN, United States Magistrate Judge.

I. MOTION RELATING TO BAIL

In March 2010, the United States government, on behalf of the government of Peru, filed a request for the extradition of David E. Castaneda-Castillo ("Castaneda-Castillo"), a former Peruvian military officer. Castaneda-Castillo has been charged in Peru with the crimes of aggravated murder, kidnapping and forced disappearance arising out of events alleged to have occurred in August 1985 during Peru's battle with the Shining Path revolutionary organization. Castaneda-Castillo has been in the United States since 1991, and has been pursuing an asylum petition since 1993. The Immigration Courts' orders denying his asylum petition have been reversed and remanded by the First Circuit, and the Immigration Courts have recommended that he be released pending the resolution of his amnesty petition. Nevertheless, Castaneda-Castillo has been in custody since September 9, 2005, when he was taken into custody by the Department of Homeland Security ("DHS"). After the extradition request was filed on March 10, 2010, he was transferred to the custody of the U.S. Marshals where he remains.

The United States has requested that Castaneda-Castillo be held without bail until a determination of extraditability is made pursuant to 18 U.S.C. § 1834. Castaneda-Castillo has moved for bail, arguing that numerous "special circumstances" exist which override the presumption against granting bail in extradition proceedings. For the reasons detailed herein, Castaneda-Castillo's motion for bail is ALLOWED and Castaneda-Castillo shall be released on home confinement with electronic monitoring, and the posting of $15,000.00 cash bail. After careful consideration of the record in this case, this court finds that Castaneda-Castillo has established the rare special circumstances which warrant bail in an extradition proceeding. In particular, but without limitation, this court finds that Peru's extensive delay in seeking extradition and the fact that Castaneda-Castillo has been in custody for five years already and faces alengthy extradition process, coupled with a very low risk of flight, warrant his release at this time.

II. STATEMENT OF FACTS ¹

Overview

The extradition request for Castaneda-Castillo arises out of a massacre that is alleged to have occurred in August 1985. As the First Circuit summarized the facts presented by Castaneda-Castillo in connection with his amnesty petition:

[Castaneda-Castillo] had been commissioned as a lieutenant in the Peruvian military in 1983. In January 1985 he was transferred to an antiterrorist unit in an area designated an emergency zone in which the Shining Path was active. The Shining Path is a revolutionary Marxist organization, well known for its energy and brutality, that has been at war with the Peruvian government for many years.

In August 1985, the military conducted an operation to search for Shining Path members in the village of Llocllapampa in the Accomarca region. Two patrols, one of them headed by Sublieutenant Telmo Hurtado and the other by Lieutenant Riveri Rondon, were to enter the village and conduct the search. Two other patrols, one of which was led by Castaneda, were assigned to block escape routes from the village. Castaneda's patrol located itself about three to five miles from the village on either side of a path.

The first two patrols entered the village and there followed a brutal massacre of dozens of innocent villagers, including many women and children. Castaneda said that he was in radio contact with his base commander but not with the patrols entering the town, and that he did not know when the attack had occurred or that it had turned into a massacre of civilians. According to Castaneda, he did not learn of the massacre until about three weeks after the operation when he heard that Hurtado had confessed to executing civilians.

Castaneda-Castillo v. Gonzales, 488 F.3d 17, 19 (1st Cir.2007).

It appears to be undisputed that neither Castaneda-Castillo nor the troops under his command personally engaged in the massacre: rather, his patrol took up a position at a possible escape route to capture anyone fleeing from the village. (App. Ex. 5, ¶¶ 16-17). Nevertheless, according to the charges against Castaneda-Castillo which form the basis of the extradition request (hereinafter " Charges " ), Castaneda-Castillo's patrol, along with another patrol, "acted jointly to destroy the terrorists who were allegedly located in the Huancayoc Ravine, an operation which concluded with the murder of more than 69 villagers, including children, elderly persons and pregnant women, of the village of Accomarca[.]" ( Charges at 5). In addition, Castaneda-Castillo is charged with the kidnapping and involuntary disappearance of Severino Baldeon Palacios.² Specifically, according to the Charges, aneye-witness, Dolores Quispe Quispe, testified that as she and her husband, Baldeon Palacios, "were walking towards their hut in Accomarca, located in Ccarhuayaco, members of the Army had intercepted and stopped them, ordering her husband to carry their bags and to guide them to Pitec, after which date her husband disappeared." ( Charges at 6-7). Allegedly Quispe Quispe later found her husband's ravaged corpse in Pitec. ( Id. at 7). While Castaneda-Castillo denies any liability, it is asserted in the Charges that his testimony places him at the scene. ( Id.). Although its relevance is unclear, the Charges cite to Castaneda-Castillo's statement to the effect that when he came to the area he had ordered his soldiers to shoot at eight persons who ran away in contravention of the army's orders to stop. ( Id. at 6).

History of the Prosecution of Castaneda-Castillo

In order to place the filing of the extradition request in context, it is necessary to explain some political events taking place in Peru. The following brief description is based on Castaneda-Castillo's description of events, and does not purport to be a complete explanation. ( See Sec. Suppl. Mem. (Docket No. 20) at 4-5).

The Accomarca massacre took place in August 1985. A Congressional investigation and civil and military court proceedings followed. Castaneda-Castillo was tried by a military tribunal and the charges against him were dismissed. The dismissal was affirmed by the Supreme Council of Military Justice on April 4, 1989. (App. Ex. 4). Hurtado was convicted of "abuse of authority" and sentenced to some years in prison, but was acquitted of the more serious murder charges against him. (Sec. Suppl. Mem. at 4).

Castaneda-Castillo entered the United States on or about August 29, 1991 with his wife and two daughters on a non-immigrant B-2 visa, and has remained in this country since then without authorization. (App. Ex. 1 at 2). Meanwhile, in Peru President Alberto Fujimori came to power, and on June 19, 1995 passed an amnesty law which protected members of the military from further prosecution, including Hurtado. (Sec. Suppl. Mem. at 4). "Fujimori, who is now serving a prison sentence primarily for the egregious human rights abuses which he ordered in the 1990's left office in the wake of a bribery scandal in November of 2000. Peru immediately embarked on a period of national reckoning. On June 4, 2001, the Comision de Verdad y Reconciliacion ("CVR"), a Truth and Reconciliation Commission on the model of similar commissions in Argentina and South Africa, was created." ( Id. at 5). Fujimori's amnesty law was officially nullified on January 11, 2002, and the CVR's final report, which contains a chapter on Accomarca, was made public on August 28, 2003. ( Id.).

On January 31, 2005, the Provincial Prosecutor filed a Criminal Complaint regarding Accomarca with the Third Supraprovincial Criminal Court at Lima. ( Id.). An "Order Commencing the Investigation of a Case" was issued by Judge Walter A. Castillo Yataco on May 31, 2005, which included charges against Castaneda-Castillo. ( Id.). This is "essentially the equivalent of a criminal complaint or indictment" and forms the basis of the Extradition Request. ( Id. at 6). The Order was issued just a few months before the expiration of the twenty-year statute of limitations which governs the claims made against Castaneda-Castillo. ( Id. at 3).

Three years later, on September 3, 2008, a "Formal Extradition Request" was issued by the Criminal Court in Peru. ( Id. at 2-3). It was amended to correct some errors on November 4, 2008. ( Id. at 3). Itwas not until March 9, 2010 that the United States requested Castaneda-Castillo's provisional arrest. (Compl. (Docket No. 1)). Thus, no effort to extradite Castaneda-Castillo was made for five years after the case against him was brought in Peru.

Castaneda-Castillo's Amnesty Application

Castaneda-Castillo applied for asylum in the United States in 1993, alleging that he had been "selectively targeted for murder by the Peruvian Communist Party—Sendero Luminoso (PCP-SL), also known as the Shining Path, which is a Maoist terrorist organization intent upon subverting and overthrowing the legitimate government of Peru." (App. Ex. 1 at 1158). According to Castaneda-Castillo, the threats against him were part of Shining Path's "campaign to selectively execute military officers and police officers who have served in the Andean Emergency Zone." ( Id.).

Castaneda-Castillo had a hearing before an Asylum Officer in 1999, who found him to be ineligible for asylum, having "determined that Castaneda's testimony was only partially credible, based upon inconsistencies between the written and oral accounts of his activities in Peru, as well as vague...