U.S. v. Fernandez-Morris
| Decision Date | 19 July 1999 |
| Docket Number | No. 98-2019-CIV.,98-2019-CIV. |
| Citation | 99 F.Supp.2d 1358 |
| Court | U.S. District Court — Southern District of Florida |
| Parties | UNITED STATES of America, Plaintiff, v. Ramiro FERNANDEZ-MORRIS and Regina Fernandez-Morris, Defendants. |
Kenneth Noto, Asst. U.S. Atty., U.S. Attorney's Office, Miami, FL, for Plaintiff.
David B. Rothman, Thornton & Rothman, Miami, FL, for Defendants.
ORDER DENYING REQUEST FOR CERTIFICATE OF EXTRA-DITABILITY
The Government is seeking to extradite two American citizens, Ramiro Manuel Fernandez Moris ("Ramiro") and his daughter Regina Fernandez Moris ("Regina") (collectively the "Fernandezes") to Bolivia pursuant to a conviction obtained in absentia in a Bolivian court more than five years ago on August 5, 1993. A Bolivian judge found that both of the extraditees were guilty of "fraud, illegal association, and breach of trust" and sentenced them to seven-year prison terms. In that same trial, two other members of the Fernandez family, Regina's brothers, Ramiro Rafael Fernandez Moris ("Ray") and Roman Fernandez Moris ("Roman"), were also convicted. Four years after their conviction, an attorney hired by Rene Arce Moscoso ("Arce"), a former business partner of the Fernandez brothers who had brought the criminal complaint, petitioned the same Bolivian judge to extradite Defendants. On September 23, 1997, a warrant was issued for the arrest of Ramiro, Regina, Ray and Roman. Extradition is only sought for Regina and Ramiro.1
The Government brings this action pursuant to an extradition treaty in force between the United States and Bolivia, signed June 27, 1995.2 An extradition treaty creates in a foreign government the right to demand and obtain extradition of an accused criminal. Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986). Absent a treaty, the federal government lacks the authority to turn the accused over to the foreign government. Id. The Court is cognizant of its obligation to approach "challenges to extradition with a view toward finding the offense within the treaty." McElvy v. Civiletti, 523 F.Supp. 42, 49 (S.D.Fla.1981). Moreover, extradition treaties are to be liberally construed so as to effect their purpose, that is, to surrender fugitives for trial for their alleged offenses. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 14, 57 S.Ct. 100, 81 L.Ed. 5 (1936); Factor v. Laubenheimer, 290 U.S. 276-301, 54 S.Ct. 191, 78 L.Ed. 315 (1933); McElvy v. Civiletti, 523 F.Supp. at 49. Pursuant to the Government's Complaint, the Fernandezes were provisionally arrested on September 4, 1998 and were subsequently released on bond.
The Court must now determine pursuant to 18 U.S.C. § 3184 whether the evidence provided by the Bolivian government in support of its application for extradition is "sufficient to sustain the charge under the provisions of the proper treaty or convention." In order for an extradition to be proper, there must be: (1) criminal charges pending in another state; (2) the charges must be included in the treaty as extraditable offenses; and (3) there must be probable cause to believe that a crime was committed and that the persons before the Court committed it. See United States v. Barr, 619 F.Supp. 1068, 1070 (E.D.Pa.1985). In making these determinations, the credibility and weight of the evidence are exclusively within the discretion of the Magistrate Judge. Noel v. United States, 12 F.Supp.2d 1300, 1303 (M.D.Fla.1998) (citing United States v. Wiebe, 733 F.2d 549, 553 (8th Cir.1984); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972)), aff'd, 180 F.3d 274 (11th Cir.1999) (Table, No. 98-3551). "The extradition hearing is not a trial on the merits to determine guilt or innocence, but serves as a means of ensuring that probable cause exists to believe the person whose surrender is sought has committed the crime for which his extradition is requested." Castro Bobadilla v. Reno, 826 F.Supp. 1428 (S.D.Fla.1993), aff'd, 28 F.3d 116 (11th Cir.1994).
The purpose [of the extradition hearing] is to inquire into the presence of probable cause to believe that there has been a violation of one or more of the criminal laws of the extraditing country, that the alleged conduct, if committed in the United States, would have been a violation of our criminal law, and that the extradited individual is the one sought by the foreign nation for trial on the charge of violation of its criminal laws.
Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir.1976)(denying habeas corpus petition where there was no basis for suspecting that Sweden's criminal system would not protect the petitioner from criminal elements that might harm him), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778 (1977). Although hearsay and other excludable evidence may be admissible at an extradition hearing,3 Defendants may only introduce evidence which explains rather than contradicts the evidence presented by the government. Id. at 1433. Testimony that merely gives the opposite version of the facts does not destroy the probability of guilt. Id.
The question that faces the Court in this matter is two-fold. First, has the Government established probable cause with respect to the two Defendants for which Bolivia seeks extradition?4 See Yapp v. Reno, 26 F.3d 1562, 1564 (11th Cir.1994) (). Second, has the Government demonstrated that there is dual-criminality, i.e., are the actions which were allegedly committed of a criminal nature as opposed to a civil matter?
In general, the complaint filed in Bolivia by Arce, a private citizen, made numerous allegations against the Fernandez family members. Specifically, they are accused of participating in a scheme to defraud Arce in connection with a business partnership with the Fernandez brothers. According to the Government's papers, the brothers wanted to have Arce finance lumber purchases in Bolivia for lumber to be shipped to their American customers. Arce in his sworn statement declared that during December 1990, a meeting occurred at the office of his company, MAFICO, at which Ray and Ramon Fernandez and his son, Rene Arce Romero were present. At this meeting, those present discussed the possibility of working together to export mahogany lumber, a business in which the Fernandez brothers were already engaged. The Fernandez brothers proposed a pilot project in which they would issue a letter of credit to MAFICO in favor of their company, EMADEX, upon the condition that MAFICO obtain bank financing for the purchasing of the wood to be exported. Arce does not contend that this arrangement was criminal or fraudulent because he made a profit on the project. Indeed, the Arces and the Fernandez brothers each received 50% of the profit from this venture.
In February 1991, the first step was taken in this pilot project between EMADEX and MAFICO when a Letter of Credit ("LC") for $140,000 by the East Asiatic Timber Americas Company ("EAC") was opened. The LC was drafted against the Danske Bank in Denmark and had a transferable interest in favor of EMADEX. EMADEX transferred this interest to assist MAFICO with obtaining financing from Banco Boliviano Americano ("BBA"). A special joint account in the name of MAFICO and requiring signatures from both an Arce and a Fernandez representative was established for this pilot project.
The BBA provided MAFICO with the loan. In furtherance of this venture, Roman later bought the lumber from a sawmill in Santa Cruz and saw to it that the lumber was shipped to its final destination in Greensboro, North Carolina. During this time, the Fernandez brothers agreed to make a personal advance to Arce of $25,000 from the proceeds of this loan even though this amount exceeded his share of expected profits from the venture.
On June 4, 1991, EAC provided EMADEX with a large purchase order. The order was accompanied by a $1.1 million LC which was similar to prior ones in that it was transferable in whole or in part and drawn in favor of EMADEX. Arce and the Fernandez brothers decided to combine their efforts in this project as they had in the pilot project. The LC was transferred to Arce so that he could obtain financing from the bank. The BBA provided a loan for 80% of the LC in two installments. The first installment of $580,000 was deposited into a joint account that required two signatures — one from the Arce family and one from the Fernandez family. Arce then requested a $225,000 loan to which Ray reluctantly agreed.
On June 26, 1991 and July 7, 1991, several shipments of lumber were delivered to EAC. At that point, the bank provided the second installment of $300,000. Meanwhile, Arce failed to repay his loan which reduced the company's working capital. In order to prove his commitment to the venture, Arce agreed to bind himself to EMADEX. A formal partnership agreement between MAFICO and EMADEX was signed on July 24, 1991. The agreement gave the Arce 50% ownership and the Fernandez brothers 50% ownership and established a joint account that required the signatures of both before funds could be released. In August 1991, Ray and Arce joined with BBA to purchase a sawmill, TAMURA S.R.L. and timberland valued at $2.8 million. The BBA and Arce each held a 45% interest and Ray owned a 10% share with an option to buy 5% from each of the other partners.
The EMADEX/MAFICO partnership continued its established custom of sending some of its wood to the United States to an agent of EMADEX, WEST FRONTIER. In or about October 1991, WEST FRONTIER changed its name to EMADEX INTERNATIONAL, INC. The Miami-based company continued to act as the U.S. agent of EMADEX, and was headed by the Fernandez brothers' father, Ramiro, a Defendant in this action. The relationship between the two...
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... ... LUCERO, Circuit Judge ... This case requires us to address the extent to which a familial connection to a suspect supports either probable cause for a search warrant or reasonable suspicion for an ... United States v. Fernandez-Morris, 99 F.Supp.2d 1358, 1368 (S.D.Fla.1999) (one's status as the father of a suspect is insufficient to establish probable cause); Timberlake ex rel ... ...
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