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In re Extradition of Howard

United States District Court, D. Nevada

July 3, 2017

IN THE MATTER OF THE EXTRADITION OF FERNANDO GAMBOA HOWARD AKA OSVALDO RICARDO ROMANDIA

          ORDER FOR CERTIFICATION OF EXTRADITION

          NANCY J. KOPPE United States Magistrate Judge.

         Order The United States of America (“United States”), on behalf of the United Mexican States (“Mexico”), has requested the extradition of Fernando Gamboa Howard, a.k.a. Osvaldo Ricardo Romandia, pursuant to the Extradition Treaty between the United States and Mexico, signed at Mexico City on May 4, 1978 (“Extradition Treaty”), and entered into force January 25, 1980. See T.I.A.S. No. 9656, 31 U.S.T. 5059, 1980 WL 309106 (Jan. 25, 1980). Gamboa Howard is charged in the State of Baja California, Mexico, with Aggravated Homicide, for which a Mexican court issued a warrant authorizing his arrest. Gamboa Howard opposes the extradition request. Alternatively, he moves to stay this court's ruling on the extradition request so that he may pursue challenges to the Mexican warrant in a Mexican court.[1]

         The court has considered the extensive record compiled in this case, as well as the witness testimony and the legal arguments made by counsel during the May 22, 2017 extradition hearing. The court finds that the United States has satisfied its burden under 18 U.S.C. § 3184 et seq., and established that Gamboa Howard is eligible to be extradited to Mexico. The Court further denies Gamboa Howard's request for a stay of this Court's ruling on the United States' extradition request pending the outcome of Gamboa Howard's amparo challenge in Mexico.

         BACKGROUND

         On July 29, 2015, the United States, acting on behalf of Mexico, submitted a complaint for the arrest of Gamboa Howard with a view toward extraditing him to fulfill the United States' treaty obligation to Mexico. See Docket No. 1. The complaint alleges that an extradition treaty exists between the United States and Mexico. Id. at ¶ 2. The complaint further alleges that, in accordance with Articles 2 and 10 of the treaty, Mexico “has asked the United States through diplomatic channels for the ... arrest and extradition” of Gamboa Howard. Id. at ¶ 3. The complaint indicates that Gamboa Howard has been charged in the State of Baja California, Mexico, with “Aggravated Homicide, as described by Articles 14, Section I; 16, Sections II and III; 123; 126; 147; 148; 150; 151; and 248 of the Penal Code of Baja California.” Id. at ¶ 4. The complaint states that, on May 2, 2001, the supervisory Judge Of Playa de Rosarito, Baja California, issued an arrest warrant for Gamboa Howard. Id. at ¶ 5. The compliant sets forth extensive factual allegations underlying the charge and the issuance of the warrant in Mexico. Id. at ¶ 6, pg. 3-7. The complaint also references the evidence in this case. Id. After reviewing the complaint, the Court determined the terms of the extradition treaty between the United States and Mexico and, because the requirements for arrest had been met, issued an arrest warrant. Docket Nos. 2, 3.

         On August 3, 2015, the United States Marshal Service arrested Gamboa Howard. Docket No. 5. Following a requested continuance, on August 5, 2015, Gamboa Howard had his initial appearance and was advised of his rights, as well as the charges in the complaint. Docket No. 8. Additionally, the Federal Public Defender was appointed to represent him. Docket No. 10. A status, identity, detention, and scheduling hearing was set for August 13, 2015. Docket No. 11. This hearing was continued several times at the request of the parties. Docket Nos. 15. 17, 20, 22, 30. On November 17, 2015, the hearing proceeded. Docket No. 31. The Court stated it would issue a written order regarding identity and detention. Id. Further, the Court set a deadline for extradition briefing and set the extradition hearing for February 2, 2016. Id. On November 19, 2015, based on the evidence presented at the hearing and the arguments of counsel, the Court found that probable cause exists to support the finding that Gamboa Howard is the same person charged with Aggravated Homicide by the Mexican authorities. Docket No. 33 at 1-3. Additionally, the Court ordered Gamboa Howard detained pending his extradition hearing. Id. at 4.[2]

         The extradition hearing was continued several times, at the parties' request. Docket Nos. 42, 46, 48, 51, 53, 57, 60, 68, 73, 75, 79. Some of Gamboa Howard's requests for continuance were based upon his pending amparo action in Mexico, which he represented could nullify the instant extradition action. Eventually, the hearing was set for May 22, 2017. Docket No. 79. Gamboa Howard has made no argument that this matter was not expeditiously processed.

         Having received the extradition documents, the Court now determines whether it is “sufficient to sustain the charge under the provisions of the proper treaty or convention.” 18 U.S.C. § 3184. If the Court finds the evidence sufficient, it must “certify the same” to the United States Secretary of State, who decides whether to surrender the fugitive “according to the treaty.” Id. The Court conducted a hearing under the provisions of 18 U.S.C. § 3184 on May 22, 2017. The United States offered eight exhibits. Gamboa Howard offered the expert testimony of Ignacio Pinto-Leon, as well as two exhibits. The United States filed a motion in limine to exclude Mr. Pinto-Leon's testimony. Docket No. 81. Both parties presented extensive arguments and supplemental post-hearing briefing, which included additional exhibits. Docket Nos. 91, 92, 93.

         STANDARDS

         1. Request for Extradition

         Extradition from the United States is a diplomatic process initiated by a request from a foreign nation directly to the State Department, seeking the extradition of an individual. Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir. 2005). “The primary concern in an international extradition matter is to deliver the extraditee to the requesting nation.” In the Matter of Extradition of Nacif-Borge, 829 F.Supp. 1210, 1213 (D.Nev. 1993). Extradition treaties create a binding obligation on the United States to surrender fugitives to its treaty partners once the fugitives are found to be extraditable. See Wright v. Henkel, 190 U.S. 40, 62 (1903). Foreign extraditions are sui generis in nature, neither civil nor criminal in nature, and set forth their own law. See, e.g., Nacif-Borge, 829 F.Supp. at 1213.

         The extradition process is governed by 18 U.S.C. § 3184, which confers jurisdiction on “any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States” to conduct an extradition hearing under the relevant extradition treaty between the United States and the requesting nation, and to issue a certification of extraditability to the Secretary of State. 18 U.S.C. § 3184; Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir. 2000). The State Department, therefore, determines whether the requesting nation's request is within the scope of a treaty between that nation and the United States and, if so, a United States Attorney files a complaint in federal district court to obtain an arrest warrant for the fugitive. Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir. 2008).

         To obtain a certification of extraditability on behalf of a requesting state, the United States must demonstrate each of the following elements: (1) the court has jurisdiction to conduct the extradition proceeding; (2) the court has jurisdiction over the fugitive; (3) an extradition treaty is in full force and effect; (4) the crime is extraditable; and (5) there is probable cause to believe that the individual appearing before the court has committed the crimes alleged by the requesting nation. See 18 U.S.C. §§ 3184, 3190; Santos v. Thomas, 830 F.3d 987, 991 (9th Cir. 2016) (en banc) (internal citation omitted); Manta, 518 F.3d at 1140.

         If the requirements are met, the extradition magistrate judge must certify the individual as extraditable to the United States Secretary of State and issue a warrant of commitment. 18 U.S.C. § 3184; Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1208 (9th Cir. 2003). Once such a certification has been made, “it is the Secretary of State, representing the executive branch, who determines whether to surrender the fugitive.” Id.; 18 U.S.C. § 3184. Extradition is a matter of foreign policy entirely within the discretion of the executive branch, and “the executive branch's ultimate decision on extradition may be based on a variety of grounds, ranging from individual circumstances, to foreign policy concerns, to political exigencies.” Blaxland, 323 F.3d at 1208. Thus, the authority of the extradition magistrate judge is limited to the judicial determination required by 18 U.S.C. § 3184. In other words, the magistrate judge “has no discretionary decision to make.” Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997). See also Manta, 518 F.3d at 1140.

         An extradition court “exercises very limited authority in the overall process of extradition.” Vo v. Benov, 447F.3d 1235, 1237 (9th Cir. 2006). The authority of a magistrate judge serving as an extradition judicial officer “is limited to determining an individual's eligibility to be extradited, which [s]he does by ascertaining whether a crime is an extraditable offense under the relevant treaty and whether probable cause exists to sustain the charge.” Id. See also Prasoprat v. Benov, 421 F.3d 1009, 1014 (9th Cir.2005); Blaxland, 323 F.3d at 1208 (internal citation omitted).

         “‘Extradition treaties are to be liberally construed so as to effect their purpose, that is, to surrender fugitives for trial for their alleged offenses.'” In re Extradition of Santos, 795 F.Supp.2d 966, 970 (C.D.Ca. 2011) (quoting Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 14 (1936)). “These treaties should be faithfully observed, and interpreted with a view to fulfill our just obligations to other powers, without sacrificing the legal or constitutional rights of the accused.” In re Mathison, 974 F.Supp.2d at 1305 (internal citations omitted). As a result, an extradition treaty “should be construed more liberally than a criminal statute or the technical requirements of criminal procedure.” Id. (quoting Factor v. Laubenheimer, 290 U.S. 276, 298 (1933)).

         2. Authentication and Admissibility

         The admissibility of evidence in extradition proceedings is governed by “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). “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); see Bingham v. Bradley, 241 U.S. 511, 517 (1916) (holding that documentary evidence that was “properly authenticated in accordance with” the predecessor provision to section 3190 was “competent” and “sufficient” to establish probable cause).

         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 Extradition Treaty does not impose supplementary authentication requirements or any other requirements for the admissibility of documentary evidence.

         The Federal Rules of Evidence do not apply in extradition hearings. Then v. Melendez, 92 F.3d 851, 855 (9th Cir.1996). Therefore, hearsay evidence is admissible, as are unsigned translations of a witness' statements and unsworn statements of absent witnesses, provided the evidence is properly authenticated and-as is true in this case-the governing extradition treaty does not ...


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