United States v. Perez, Case No. 1:15-MJ-0074 SKO
| Decision Date | 10 March 2016 |
| Docket Number | Case No. 1:15-MJ-0074 SKO |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ELIAS MENDOZA PEREZ, Defendant. |
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California |
This is an extradition proceeding pursuant to 18 U.S.C. § 3184. The Government of ("Mexico") has requested the United States Government extradite Elias Mendoza Perez ("Mendoza Perez"), a fugitive from Mexico"s justice for the crime of homicide. The extradition request is based upon a 1978 Treaty between the United States and Mexico, which was signed at Mexico City on May 4, 1978, and entered into force on January 25, 1980 ("Treaty").
On May 15, 2015, a complaint for the provisional arrest of Mendoza Perez was filed by the United States Government. (Doc. 1.) Acting on the complaint, this Court issued a warrant on May 15, 2015 for the provisional arrest of Mendoza Perez under 18 U.S.C. § 3184. Mendoza Perez was arrested on the provisional warrant on May 27, 2015. (Doc. 15.) Mendoza Perez was arraigned and appointed counsel by Magistrate Judge Gary S. Austin on May 28, 2015 and ordered detained.
Extradition proceedings were scheduled by the parties. By stipulation of the parties, the Court set a briefing schedule for filing of briefs in support of and in opposition to extradition. On January 19, 2016, the Government filed a brief in support of extradition, along with supporting exhibits. (Doc. 30.) Also on January 19, 2016, Mendoza Perez filed a memorandum and declaration in opposition to extradition. (Doc. 28-29.) An extradition hearing was held on February 29, 2016. The government was represented by AUSA Daniel Griffen. Defendant Mendoza Perez was present, being assisted by the Spanish language interpreter, and represented by counsel Zepure Attashian.
Based upon all the filings and evidence presented, the Court finds that Elias Mendoza Perez is extraditable to Mexico for the offense requested, homicide, and certifies this finding to His Excellency John F. Kerry, Secretary of State, as required under 18 U.S.C. § 3184.
To obtain a certification of extraditability on behalf of a requesting state, the United States has the burden of demonstrating each of the following elements: (1) the court possesses subject matter jurisdiction to conduct extradition proceedings; (2) the court possesses personal jurisdiction over the person named in the extradition request; (3) a valid extradition treaty exists between the requesting state and the United States, which is, at all relevant times has been, in full force and effect; (4) the person named in the extradition request is charged with having committed a criminal offense within the jurisdiction of the requesting state and the charged offense is extraditable under the relevant extradition treaty (that is, the offense charged falls within the terms of the relevant extradition treaty); (5) there is competent evidence establishing probable cause to believe that the person named in the extradition request committed the charged offense, and (6) the person named in the extradition request is the person arrested and brought before the court. See 18 U.S.C. § 3184, 3190; Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir. 2008). "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).
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If the Court determines that all the requisite elements have been met, the findings are incorporated into the certificate of extraditability. The certificate is forwarded to the Department of the State. The Secretary of State makes the final decision on whether to surrender the respondent. 18 U.S.C. § 3186.
This Court possesses subject matter jurisdiction to conduct extradition proceedings. Pursuant to 18 U.S.C. § 3184 and Eastern District of California Local Rule 302(b)(8), a Magistrate Judge is authorized to conduct an extradition hearing. Thus, this Court has the authority to conduct an extradition hearing.
The Court must have personal jurisdiction over the person sought to be extradited. Here, Mendoza Perez is in the custody in the Eastern District of California. Therefore, the Court has personal jurisdiction over him.
The Court may take judicial notice of the existence of a treaty. Allen v. Markham, 156 F.2d 653, 663 (9th Cir. 1946), rev'd in part on other grounds and aff'd in part sub nom., Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947).
On February 25, 2016, the Government filed under seal a declaration of Julie B. Martin, an Attorney Advisor in the Office of the Legal Advisor for the Department of State. Ms. Martin"s declaration certifies that there is a valid extradition treaty in force between the United States and Mexico. (Declaration of Julie B. Martin, dated March 30, 2015, filed as Doc. 35, ECF pages 2-4 and filed on February 25, 2016.) A copy of the Treaty is attached to Ms. Martin"s declaration. The evidence establishes the Treaty is in full force and effect and remains so during the entire time from the date of the underlying offense for which extradition is sought, to the date of this order. Accordingly, the Court takes judicial notice that there is an extradition treaty in full force and effect between the United States and Mexico which was signed at Mexico City on May 4, 1978, and entered into force on January 25, 1980.
On May 15, 2015, the Government filed the extradition request and accompanying documents, including Arrest Warrant and citations to the applicable Mexican penal codes. (Doc. 1.) These documents indicate that Mexico requests the extradition of Mendoza Perez for the crime of homicide. This offense is punishable under the laws of both Mexico and the United States with a maximum prison sentence of no less than one (1) year, as established by Article 2, paragraph 3 of the Extradition Treaty between Mexico and the United States of America in relation to item 1 of the Treaty"s Appendix. (See Declaration of Julie B. Martin, dated March 30, 2015, filed as ECF Doc. 35 on February 25, 2016 and attached Treaty.)
Article 2 of the Treaty provides that extraditable offenses include "wilful acts which fall within any of the clauses of the Appendix and are punishable in accordance with the laws of both Contracting Parties by deprivation of liberty the maximum of which shall not be less than one year." Treaty, Art. 2 attached as ECF Doc. 35 pages 17-18. Inasmuch as the crime of homicide is punishable by a deprivation of liberty, the maximum of which exceeds one (1) year in both countries, the Treaty covers the crime for which Mendoza Perez is sought to be extradited.
A central function of the magistrate judge in an extradition proceeding is not to determine guilt or innocence, but to determine whether probable cause exists to hold the extraditee for trial in the requesting state. Escobedo v. U.S., 623, F.2d 1098, 1102 n. 5 (5th Cir. 1980). A magistrate's function in making this determination is to ascertain whether there is "any" evidence establishing reasonable or probable cause. U.S. ex rel Sakaguchi vs. Kaulukukui, 520 F.2d 726, 730 731 (9th Cir. 1975).
The admissibility of evidence in extradition matters is controlled by 18 U.S.C. § 3190 and "the general extradition law of the United States and the provisions of the" Extradition Treaty. Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1450 (9th Cir. 1987); accord, Oen YinBChoy v. Robinson, 858 F.2d 1400, 1406 (9th Cir. 1988), cert. denied, 490 U.S. 1106. "The authentication requirements for documentary evidence are contained in 18 U.S.C. § 3190, which specifies that„the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that submitted documents are authenticated in the manner required."" Barapind v. Enomoto, 400 F.3d 744, 748 (9th Cir. 2005) (en banc) (per curiam). The Extradition Treaty states that the documents "accompany[ing] the request for extradition, shall be received in evidence when: ... b) In the case of a request emanating from the United Mexican States, they are certified by the principle [sic] diplomatic or consular officer of the United States in Mexico." Extradition Treaty, art. 10, § 6.
The Federal Rules of Evidence do not apply. Fed. R. Evid. 1101(d)(3). The standards for determining whether probable cause is established are the same as those set forth in Rule 5.1 of the Federal Rules of Criminal Procedure. In re Extradition of Neto, 1999 WL 627426, at *3 (S.D.N.Y. Aug. 17, 1999). Thus, the Government need only present competent legal evidence to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief in the guilt of the accused.
In determining if probable cause exists, the Court can look to the "totality of circumstances." Illinois v. Gates, 462 U.S. 213, 238 (1983). In other words, the Court must simply decide whether the evidence permits a reasonable belief that the person whose extradition is sought committed the crime. In re Ribaudo, 2004 WL 213021 at *5 citing Austin v. Healy, 5 F. 3d 598, 605 (2nd Cir. 1993), cert. denied, 541 U.S. 1165 (1994). This standard looks to whether there is a fair probability of guilt. Illinois v. Gates, 462 U.S. at 238. As explained by the Supreme Court in Illinois v. Gates, a probable cause or fair probability decision does not trigger an analysis based on finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence. Illinois v. Gates, 462 U.S. at 235, 238 239.
Moreover, under 18 U.S.C.§ 3190, hearsay is...
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