Kathleen M. Tafoya, United States Magistrate Judge.
This matter comes before the court on the Extradition Request filed by the United States on behalf of the United Mexican States ("Mexico"), seeking to extradite Respondent Gabriel Rodriguez Caro, a United States citizen, to Mexico for the aggravated kidnapping of Marlene Paola Ramos Ortega. For the reasons set forth below, the Extradition Request is
A request by Mexico to extradite an individual from the United States to that foreign country is governed by the provisions of the federal extradition statute, 18 U.S.C. §§ 3181-3196, and the Extradition Treaty Between the United States of America and the United Mexican States dated May 4, 1978, 31 U.S.T. 5059, TIAS 9656 ("Extradition Treaty"). The extradition process is initiated by Complaint for Arrest for the purposes of Extradition filed by the United States of America ("United States" or "Government"), and an arrest warrant. 18 U.S.C. § 3184. Pursuant to the Extradition Treaty, the diplomatic note and the other supporting documentation were bates labeled with pages 1-651 and timely produced to the Respondent on May 24, 2017. [Doc. No. 25 at 1.] See In re Extradition of Figueroa, Case No. 12-M-269, 2013 WL 3243096, at *2 (N.D. Ill. June 26, 2013). Article 10 of the Extradition Treaty requires the formal extradition request to include the following:
[Doc. No. 25-1, 26]. In addition, when the extradition request relates to an individual who has not yet been convicted of a crime, it must also include (1) a certified copy of the warrant of arrest issued by a judge or other judicial officer of the requesting Party; and (2) evidence which, in accordance with the laws of the requested Party, would justify the apprehension and commitment for trial of the person sought if the offense had been committed there. [Id. at ¶ 3]. According to the Extradition Treaty, the documents from Mexico must be presented in English, the language of the United States. [Id. at ¶ 5].
The next phase of the extradition process is the extradition hearing, which is conducted by the federal court to consider the evidence presented by Mexico through the United States. The extradition hearing is not a criminal trial, and the Federal Rules of Criminal Procedure do not apply. Fed. R. Crim. P. 1. Rather, the purpose of such hearing is to determine whether there is competent evidence to justify holding the individual to await trial, and not to determine whether the evidence is sufficient to justify a conviction. See Peters v. Egnor, 888 F.2d 713, 717 (10th Cir. 1989). Specifically, under the federal extradition statute, this court hears evidence and determines whether the evidence presented is sufficient to support a finding of probable cause that the person charged committed the extraditable offense. 18 U.S.C. § 3184; In re Extradition of Vargas, 978 F.Supp.2d 734, 739 (S.D. Tex. 2013). The court is not authorized under the Extradition Treaty to make a finding of guilt or innocence, and therefore, the Government is not required to present evidence sufficient to convict.
Several principles guide this court's inquiry at the extradition hearing. First, extradition treaties, unlike criminal statutes, are generally construed liberally in favor of enforcement. See Factor v. Laubenheimer, 290 U.S. 276, 293-94, 54 S.Ct. 191, 78 S.Ct. 315 (1933) ("In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international
Next, under the rule of non-inquiry, the court refrains from investigating the fairness of Mexico's justice system, and from inquiring into the procedures or treatment which await Respondent if he is returned to Mexico. See Smith v. United States, 82 F.3d 964, 965 (10th Cir. 1996); In re Extradition of Chan Seong-I, 346 F.Supp.2d 1149, 1157 (D.N.M. 2004). Under the general rule of non-contradiction, Respondent has no right to pose questions of credibility regarding Mexico's witnesses, but only to explain away or completely rebut probable cause for the purpose of the extradition hearing. In re Extradition Vargas, 978 F.Supp.2d at 748.
Also, the Federal Rules of Evidence do not control the admissibility of evidence in an extradition hearing. See Fed. R. Evid. 1101(d). Instead, under federal extradition law, the admissibility of evidence is controlled by 18 U.S.C. § 3190 and the Extradition Treaty. Section 3190 provides:
18 U.S.C. § 3190. Article 10(6)(b) of the Extradition Treaty provides:
[Doc. No. 25-1, 27 at ¶ 6(b)]. Once the papers are certified by the diplomatic officer, they are considered properly authenticated and admissible. See Collins v. Loisel, 259 U.S. 309, 314, 42 S.Ct. 469, 66 S.Ct. 956 (1922). Neither federal criminal law, nor state criminal law, has any import on the admissibility of documents for the purpose of proving probable cause in an extradition hearing. See Escobedo, 623 F.2d at 1103.
If a court determines that there is probable cause to support the underlying charge, the decision to extradite is left to the discretion of the Secretary of State. See 18 U.S.C. § 3186. Therefore, it is the Secretary of State, not this court, who considers whether an extradition request should be denied due to humanitarian concerns.
Against this legal background, this court now turns to the request to extradite Gabriel Rodriguez Caro a/k/a "El Guero" to Mexico for the aggravated kidnapping of Marlene Paola Ramos Ortega on August 5, 2014.
According to the warrant of arrest the following are the facts of the case:
On August 5, 2014, Patricia Ortega Amparan and Ramiro Ramos Peregrino initiated a complaint regarding their daughter, Ramos Ortega, with whom they had last been in contact on August 1, 2014. Ortega Amparan and Ramos Peregrino advised that at about 7:23 a.m. on August 2, 2014, they received a text message that read, "we have kidnapped your daughter pay up or we will kill her do not talk to the police or we will kill her." At 12:09 p.m. the same day, they received a telephone call in which the kidnappers requested 350,000 Mexican pesos for the ransom of Ramos Ortega.
According to Ortega Amparan and Ramos Peregrino, ransom negotiations continued until August 4, 2014, when the kidnappers agreed to accept 62,550 Mexican pesos for the ransom of Ramos Ortega. The kidnappers instructed Ortega Amparan and Ramos Peregrino to put the money, along with cell phones, jewels, and laptops, inside a bag, go to a specified location, and then call the kidnappers in order to agree on a subsequent location to deliver the ransom. At the same time, the kidnappers said they would hand over Ramos Ortega. Ramos Peregrino arrived at the location at approximately 11:00 p.m., dialed the kidnappers cell phone, and did as instructed. Approximately 25 minutes after hanging up with the kidnappers, Ramos Peregrino received a telephone call from the police telling him that they had apprehended Marcos Humberto Reyes Reyes, who had picked up the bag containing the ransom money, and informed her parents that Ramos Ortega had been murdered.
On November 9, 2014, after having been a fugitive for a period of time, Ivan Gonzalez Rodriguez (a/k/a el negro), a confessed member of the group who kidnapped and killed Ramos Ortega, provided a confession to the Public Prosecutor from the Office of the Attorney General of the State of Chihuahua. In his confession, González Rodríguez stated that on August 1, 2014, he and Rodríguez Caro decided to kidnap Ramos Ortega. In accordance with the plan, Rodríguez Caro called Ramos Ortega and asked her to accompany him to collect money he was owed. Ramos Ortega agreed to meet Rodríguez Caro at an agreed location at 4:30 p.m. on that date. Rodríguez Caro and González Rodríguez went to the location, and ultimate victim Ramos Ortega picked them up in her car. The group then picked up Marcos Humberto Reyes Reyes and went to a residence under the pretense that they were going to talk. Once at the residence, Marcos Humberto Reyes Reyes struck Ramos Ortega in the head with a bottle, and Rodríguez Caro and González Rodríguez tied her feet, arms, and head with tape. Rodríguez Caro also took Ramos Ortega's wallet and cellular telephone. González Rodríguez further stated that on August 2, 2014, Marcos Humberto Reyes Reyes called Ramos Ortega's parents to demand ransom for their daughter.
Marcos Humberto Reyes Reyes and Rodríguez Caro engaged in additional ransom negotiations with the victim's parents. On August 3, 2014, González Rodríguez, Marcos Humberto Reyes Reyes, and Rodríguez Caro killed Ramos Ortega by placing plastic bags over her face and strangling her with cables. According to González Rodríguez, on August 4, 2014, Ramos Ortega's parents requested proof that Ramos Ortega was alive. González Rodríguez, Marcos Humberto Reyes Reyes, and Rodríguez Caro took two photographs of Ramos Ortega and Rodríguez Caro sent them to Ramos Ortega's parents to convince them that their daughter was alive. Ramos Ortega's parents agreed to deliver the ransom money. Marcos Humberto Reyes Reyes, accompanied by
After his arrest at the scene of the ransom drop, on August 6, 2014, Marcos Humberto Reyes Reyes provided a sworn statement to the Public Prosecutor. Marcos Humberto Reyes Reyes advised that on August 1, 2014, Rodríguez Caro asked him for assistance in picking up a bag with money from a ransom for a girl (Ramos Ortega). According to Marcos Humberto Reyes Reyes, Ramos Ortega was held captive at a residence with her hands, feet, eyes, and mouth bound by tape. Marcos Humberto Reyes Reyes stated that Ramos Ortega was killed because she knew both Rodríguez Caro and González Rodríguez because they were her neighbors.
According to Marcos Humberto Reyes Reyes, on August 4, 2014, Rodríguez Caro instructed Marcos Humberto Reyes Reyes to pick up the bag with the ransom money. Marcos Humberto Reyes Reyes asked his sisters, Jennifer Reyes Reyes and Itzel Arely Reyes Reyes, to accompany him. When they arrived at the location to pick up the ransom, Marcos Humberto Reyes Reyes was arrested by Chihuahua State police officers.
On July 3, 2015, Jennifer Reyes Reyes and Itzel Arely Reyes Reyes performed identification proceedings in which they identified a photograph of Gabriel Rodríguez Caro as the individual they knew as a friend of their brother, Marcos Humberto Reyes Reyes, and who participated in the kidnapping of Ramos Ortega.
Several motions were filed by Respondent, including a Motion to Vacate Warrant and Dismiss Complaint [Doc. No. 9], which was denied by the court on April 12, 2017 [Doc. No. 22], and a Memorandum of Law Regarding Bail in International Extradition [Doc. No. 10], seeking release on conditions of bond, which was denied by this court on March 23, 2017 [Doc. No. 14].
The Extradition Hearing was held on October 3, 2017. [Minutes, Doc. No. 39.] In anticipation of the hearing, the United States filed a Pre-Hearing Brief [Doc. No. 25] that contained copies of the formal extradition request, which was presented in hard copy at the time of the Extradition Hearing.
The United States proffered no live testimony, but included within its submissions to the court [Doc. No. 25-1] the Declaration of Tom Heinemann, an official with the Department of State, to which is attached Mexico's formal arrest warrant and supporting evidence.
After a lengthy review of the Mexican law and the evidence in the case, the Morales Affidavit attaches twelve exhibits including:
In an extradition proceeding, the United States must establish that: (1) the court has subject matter and personal jurisdiction; (2) a valid extradition treaty exists between the United States and the foreign requesting state; (3) the required documents were presented in accordance with United States law, translated and duly authenticated by the United States consul; (4) the pending criminal charge in the foreign requesting state is appropriate under the extradition treaty; (5) the Respondent is the person sought; and (6) there is sufficient evidence to establish probable cause that a crime was committed and that the person before the court committed that crime. See e.g. In re Extradition of Fuentes, No. 13-mj-01026-KLM, 2013 WL 2153537 (D. Colo. May 13, 2013); In re Extradition of Sarellano, 142 F.Supp.3d 1182 (W.D. Okla. 2015). The court will address each of these factors in turn.
The extradition statute expressly permits federal magistrate judges to hear and decide extradition cases if authorized to do so by a court of the United States. 18 U.S.C. § 3184. The Local Rules of Criminal Practice in the United States District Court for the District of Colorado provide,
The court has jurisdiction over a fugitive found within its boundaries. 18 U.S.C. § 3184. There is no dispute that Gabriel Rodriguez Caro was found within the jurisdictional boundaries of this court at the time of his arrest. See Complaint for Provisional Arrest with a View Toward Extradition (18 U.S.C. § 3184), [Doc. No. 1 at ¶ 10.] Mr. Rodríguez Caro was in custody at the Bureau of Prisons facility in Florence, Colorado in connection with Case No. 3:15-CR-01775-DCG, originating out of the United States District Court for the Western District of Texas at the time of his arrest. Mr. Rodríguez Caro was released from custody by the Bureau of Prisons and was immediately arrested on the provisional arrest warrant in connection with this extradition.
The statute limits extradition to instances in which a treaty is in force between the requesting state and the requested state. See, e.g., Argento v. Horn, 241 F.2d 258 (6th Cir. 1957). When the government provides a declaration from an attorney in the Department of State attesting that the treaty is in full force and effect, then the Court should extend deference to that determination. See Terlinden v. Ames, 184 U.S. 270, 288, 22 S.Ct. 484, 46 S.Ct. 534 (1902); Kastnerova v. United States, 365 F.3d 980, 986 (11th Cir. 2004). Here, the Declaration of Tom Heinemann, an attorney with the Department of State, verifies that the extradition treaty between the United States and Mexico of May 4, 1978 (TIAS 9656) is in full force and effect. [Doc. No. 25-1, 3 ¶ 3.] Additionally, Mr. Heinemann declares that the Embassy of Mexico has submitted Diplomatic Note No. 02143, dated April 28, 2017, formally requesting the extradition of Gabriel Rodriguez Caro. (Id. at ¶ 2.) The Parties do not contest the Extradition Treaty is valid and binds the United States and Mexico, and is in full force and effect as required by the extradition statute at 18 U.S.C. § 3184.
In the Morales Affidavit, Mr. Morales states that "Gabriel Rodriguez Caro is accused of kidnapping Marlene Paola Ramos Ortega ..." [Doc. No. 25-1 at 45.] The arrest warrant charges the Respondent with
[Doc. No. 25-1 at 7; Doc. No. 25-2, 40.] Article 9 of the kidnapping statute delineates the basic crime as "[t]o whomever deprives another person of his/her liberty,..." (id.) and prescribes a basic penalty of "40 to 80 years incarceration" plus fines if the deprivation was perpetrated to obtain a ransom or any other profit. (Id.) The
Respondent challenges extradition as to what he characterizes as a separate charge — the allegation of kidnapping where the perpetrator or perpetrators are related to, have ties of friendship, gratitude, trust or a labor relationship with the victim or a person related to him. Respondent argues that in Mexico, if that particular element is proved, then a person faces both a higher minimum sentence and a higher maximum sentence than provided for kidnapping without that element and that kidnapping aggravated in this manner is outside the bounds of the applicable extradition treaty. Mr. Caro contends there is not a similar statute in the United States.
Treaties can take several forms. "List treaties" usually contain a list of particular extraditable offenses or categories of offenses. Most modern extradition treaties, however, contain a so-called "dual criminality" provision, providing that extradition must be granted for any serious offense (or a category of offenses) that is punishable in both the requesting and requested states.
In Justice Brandeis' opinion in Collins, the Supreme Court held that under either kind of treaty "[t]he law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions." Id. at 312, 42 S.Ct. 469. See also Bryant v. United States, 167 U.S. 104, 108, 17 S.Ct. 744, 42 S.Ct. 94 (1897); Shapiro v. Ferrandina, 478 F.2d 894, 907-08 (2d Cir. 1973)
The United States-Mexico Extradition Treaty is a hybrid treaty because it contains both a list of particular offenses subject to extradition as well as a dual criminality provision.
Article 2(1) of the Extradition Treaty states:
[Doc. No. 25-1, 22.] The Treaty's Appendix contains a list of enumerated offenses and categories of extraditable offenses. (Id. at 36.) Subsection 4 of the Appendix provides that "[k]idnapping; child stealing; abduction; [and] false imprisonment" constitute extraditable offenses.
Defendant argues that Aggravated kidnapping is not listed in Appendix A because if the treaty writers wanted to indicate that a category of offenses related to kidnapping, rather than just one form of kidnapping, they would have used language such as "[o]ffenses against the laws relating to ..." or "[a]n offense against the laws relating to ..." kidnapping. (Resp. Brief at 33.) Therefore, Respondent argues
The crime of kidnapping is found at 18 U.S. C. § 1201 in the federal statutes. Kidnapping is defined as "[w]hoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment." The punishment for the United States version of kidnapping has a maximum imprisonment that is more than one year. Very similar to Mexico's kidnapping provisions, there are certain aggravators to the sentences a perpetrator may receive if convicted of kidnapping under various circumstances. See Section 2A4.1. Kidnapping, Abduction, Unlawful Restraint, FCJ Federal Sentencing Guidelines Manual (11/1/16), Commentary relying on
Further, the United States sentencing provisions for all crimes, including kidnapping, lists as an aggravator "[i]f the defendant abused a position of public or private trust, ..., in a manner that significantly facilitated the commission or concealment of the offense," the punishment Guideline Range will be increased by 2 levels. Section 3B1.3. Abuse of Position of Trust or Use of Special Skill, FCJ Federal Sentencing Guidelines Manual (11/1/16).
"[E]xtradition treaties, unlike criminal statutes, are to be construed liberally in favor of enforcement because they are `in the interest of justice and friendly international relations.'" United State v. Lui Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997) (quoting Laubenheimer, 290 U.S. at 295, 54 S.Ct. 191). See also Egnor, 888 F.2d at 716 ("[W]e are not expected to become experts in the laws of foreign nations." (quotations omitted)).
This court finds that the treaty's inclusion of "kidnapping" as an extraditable offense is sufficient here to satisfy extradition for that crime outside of and including any conditions which may aggravate the sentence if Respondent is convicted of the crime under Mexican law.
The court is similarly unpersuaded by Respondent's argument that because not all the versions of aggravated kidnapping listed in the charges pending in Mexico are substantially analogous to United States' criminal statutes, "the `essential character' of the acts criminalized by the laws of each country" are not the same under the treaty's dual criminality provision. See Theron v. U.S. Marshal, 832 F.2d 492, 496 (9th Cir. 1987), overruled on other grounds, United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997).
As set forth above, all versions of aggravation for the crime of kidnapping alleged against Mr. Rodriguez Caro
There is no dispute that Gabriel Rodriguez Caro is the individual subject to the formal extradition request. In addition, two witnesses to the crime, Jennifer Reyes and Itzel Arely Reyes Reyes identified Rodriguez Caro in photographic line ups and the court was able to compare the pictures identified by the witnesses to the Respondent sitting in court in Denver, Colorado. See [Doc. Nos. 25-4, 64 and 67.] Additionally, as Exhibit 12 to his Declaration, Mr. Morales provided a picture of the wanted individual Gabriel Rodriguez Caro, which the court was also able to compare to the individual sitting in court. This court finds the three photographs all depict the Gabriel Rodriguez Caro who is a respondent in this extradition proceeding. Rodriguez Caro's identity for the purposes of the extradition proceeding has been established.
Finally, the court turns to whether there is sufficient evidence to conclude that there is probable cause the charged crime of aggravated kidnapping has been committed and that Respondent committed that crime. See Egnor, 888 F.2d at 717 ("For a person to be extradited, there must be probable cause to hold him for trial"). The standard of proof for probable cause is identical to the one used by federal courts in preliminary hearings; therefore, the role of this court is to determine whether there is competent evidence to justify holding the Respondent to await trial in Mexico, not to determine whether the evidence is sufficient to justify a conviction under the laws of either country. See Sindona v. Grant, 619 F.2d 167, 175 (2d Cir. 1980); In re Extradition of Fuentes, 2013 WL 2153537, at *3. A magistrate judge's finding of probable cause will not be disturbed on appeal through a habeas corpus review when "there [is] any evidence warranting finding that there was a reasonable ground to believe the accused was guilty." Smith, 82 F.3d at 965 (affirming extradition).
In combination, the Morales Affidavit and its exhibits satisfy the submission requirements of the Extradition Treaty, Article 10, as well as establish probable cause against Respondent for the Mexican crime of Aggravated Kidnapping. Specifically, the witness statements establish probable cause to believe Respondent, who is identified in multiple photo lineups [Doc. No. 25-4, 62 thru 69], on August 1, 2014, kidnapped Marlene Paola Ramos Ortega and thereafter demanded a 350,000 pesos ransom from Ramiro Ramos Peregrino and Marlene Paola Ramos Ortega, her parents. On August 4, 2014, after negotiations, the parents paid 62,550 pesos in ransom by placing the money in a suitcase and following the kidnapper's instructions. [Doc. No. 25-2, 46-47.]
The suitcase containing the ransom money was picked up by Mr. Rodriguez Caro's conspirator, Marcos Humberto Reyes Reyes ("Marcos"). Marcos was arrested after picking up the suitcase and he told the police that Gabriel Rodriguez Caro, who Reyes Reyes also identified by the moniker "El Guero", and Ivan Gonzalez Rodriguez, the third conspirator who was also known as "El Negro," offered him 1,000 pesos to perform that act. [Doc. No. 25-4, 44-47.] Marcos also told the police that he had seen a girl who was blindfolded with her hands feet and mouth tied up in the house of "el negro." He also heard
Ivan Gonzalez Rodriguez was also arrested after being a fugitive for several months and he provided a statement implicating Gabriel Rodriguez Caro and Marcos Humberto Reyes Reyes. (Id. at 49-57.) The statement detailed that Gabriel Rodriguez Caro devised a plan to kidnap the victim. Rodriguez Caro first enticed the victim to go with them by asking her to drive and help him pick up some money. The victim said she would go and she picked up Rodriguez Caro and El Negro. They drove to El Negro's residence, where Rodriguez Caro left the victim's car. At some point while the three males were inside the house together Gabriel and Marcos confided that they wanted to kidnap the victim and get ransom for her return. They all agreed that Marcus would hit Marlene over the head with a bottle, which he did. After Marlene was hit, the three of them dragged her into the house and tied her down. Rodriguez Caro taped her face and took her wallet and phone. The three kept her tied up at El Negro's house while they all made multiple telephone calls with the victim's family members. During this time period, the three males, including Rodriguez Caro drank beer and drove around in a borrowed car and at one point Rodriguez Caro was reported to have actually left to go to a concert. At another point, El Negro stated that he left to go pick up his mother while Marcos stayed with the victim. After El Negro came back he and Marcos continued to monitor the victim and reported to Rodriguez Caro that the victim did not look good and complained of pain and of being cold. The two waited for Rodriguez Caro and when he did not show up after several hours, El Negro and Marcus killed the victim by strangling her with a set of stereo cables. According to El Negro, the victim fought with them until she died. Then, according to El Negro, the two left the victim dead in the house.
Once outside the house, Marcos told his sisters, Itzel and Jennifer, aged 16 and 11 years old, respectively, that he had killed a girl who was a friend of theirs. About an hour after the killing, El Negro reported that Rodriguez Caro returned to the scene. The three worked together to fake some pictures of the dead victim so her family would think she was still alive, then made more calls to the victim's family for money.
El Negro also admitted that when the victim's father showed up with the money for the ransom and left the suitcase and the police caught Marcos picking up the money, Rodriguez Caro and El Negro fled the scene. Rodriguez Caro's father, knowing what his son and others had done, drove the two fugitives to Rodriguez Caro's grandfather's house in La Chavena, where they stayed for a few days until Rodriguez Caro could "cross over" at El Paso with his father.
The kidnapped victim's death is fully reported in the autopsy report and the death certificate, both attached to the Morales declaration.
This court concludes there is sufficient evidence, taken together, to establish probable cause that Respondent committed the crime of which he is accused.
For the foregoing reasons:
This court
