United States District Court, D. Nevada
IN THE MATTER OF THE EXTRADITION OF FERNANDO GAMBOA HOWARD AKA OSVALDO RICARDO ROMANDIA
ORDER FOR CERTIFICATION OF EXTRADITION
J. KOPPE United States Magistrate Judge.
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 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.
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,
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.
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.
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.
Request for 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.
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).
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.
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.
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
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)).
Authentication and Admissibility
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).
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.
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 ...