JONATHAN GOODMAN, United States Magistrate Judge.
The United States of America, acting on behalf of the Government of the Dominican Republic, submitted a request for an order certifying the extraditability of Eddy Bismarck Nunez-Garrido ("Nunez") (also "fugitive" or "defendant") on the charge of homicide. For the reasons stated below, this Court
The Court received a Complaint in this matter on February 7, 2011, filed by Amit Agarwal, Assistant United States Attorney for the Southern District of Florida, acting on behalf of the Government of the Dominican Republic, pursuant to the Dominican Republic's request for the extradition of Eddy Bismarck Nunez-Garrido.
On August 22, 23, and 24, 2011, the Court conducted an extradition hearing, where the authenticated documents submitted by the Government of the Dominican Republic were received in evidence. The defendant appeared with counsel and was permitted to present testimony from two witnesses. In particular, the defendant's cousin testified that he was present at the time of the shooting and believes that the fugitive shot the victim by accident. The fugitive also presented testimony from an expert witness, Dr. Ronald Wright, who expressed certain concerns regarding some of the conclusions set out
The Court has carefully reviewed the evidence, including the declarations of various attorneys in the Office of the Legal Adviser, Department of State, and had the opportunity to observe the defendant's physical characteristics as compared with the evidence of identification before the Court.
Based on that review, the Court
1. the Undersigned judicial officer is authorized under Title 18, United States Code, Section 3184, to conduct an extradition hearing [defendant does not contest this];
2. the Court has personal jurisdiction over the defendant and subject matter jurisdiction over the case [defendant does not contest this];
3. there is currently in force an extradition treaty between the United States and the Dominican Republic [the defendant does not contest this]. 7 Bevans 200, 1909 U.S.T. LEXIS 50;
4. the defendant was charged in the requesting state with homicide, was convicted in absentia of that offense, and was sentenced to a term of 20 years imprisonment [the defendant does not contest this];
5. homicide is an extraditable offense within the meaning of Article II, paragraph 1 of the extradition treaty [defendant does not contest this];
6. the requesting state seeks the extradition of the defendant for the offense of homicide [the defendant does not contest this either];
7. the issue of probable cause is the only issue defendant challenges in this extradition proceeding; and
8. based on the evidence submitted by the requesting country and presented by the United States, and for the reasons set forth below in this incorporated Memorandum Opinion, the Court finds there is probable cause to believe that Eddy Bismarck Nunez-Garrido, the fugitive and the same person who was brought before this Court, committed the offense for which his extradition is sought.
Based on the foregoing findings, the Court
As outlined below, the scope of this Court's authority and discretion is critical to assessing the Government's extradition request.
Nunez has mounted what is, in effect, a defense which seeks to challenge the merits of the homicide charge. While appropriate for a federal criminal jury trial in this country, this type of defense and the points it urges are inappropriate for an extradition proceeding.
There is little dispute about the nature of Nunez's challenge. He contends that the charge is incorrect and that the fatal shooting was purely accidental. He argues the autopsy was deficient and the conclusions of the two forensic pathologists, who performed the autopsy and concluded that the cause of death was homicide, are unreliable. He introduced testimony from a well-known and reliable expert in forensic pathology who testified at the extradition hearing, former Broward County chief medical examiner Dr. Ronald Wright.
"Dr. Wright's Opinions Which
"Dr. Wright strongly
The assertion that Nunez threw three rocks at the victim in the Jacuzzi "was
"Julio Cesar denied that he had anything to drink" but that denial "is
Nunez also faults the United States and the Dominican Republic for not arranging to have the two forensic pathologists appear as live witnesses at the extradition hearing. He also takes issue with the timing of the autopsy.
In sum, all of these arguments seek to rebut or challenge the evidence — a strategy unavailable in an extradition hearing. Nunez's arguments might be persuasive at a jury trial but cannot be considered at an extradition hearing. To demonstrate why these arguments are inappropriate, the Court will first outline the parameters of an extradition hearing and explain the rules which govern extradition hearings.
Pursuant to Section 3184 of Title 18, United States Code, the Executive Branch remains primarily responsible for extradition. Martin v. Warden, Atlanta Pen, 993 F.2d 824, 828-29 (11th Cir.1993). The extradition judge is assigned the limited duty of determining the sufficiency of the request under the applicable treaty provisions. Id. at 828. This limited judicial function is carried out by conducting the hearing pursuant to 18 U.S.C. § 3184, determining whether the accused is subject to extradition, and, if so, certifying this to the Secretary of State.
Because of the circumscribed nature of an extradition proceeding, the importance of international obligations and the inherent practical difficulties in international proceedings, a defendant's right to challenge the evidence against him at an extradition hearing is limited. In re Extradition of Harusha, No. 07-x-51072, 2008 WL 1701428, at *4 (E.D.Mich. Apr. 9, 2008); see also In re Extradition of Rodriguez Ortiz, 444 F.Supp.2d 876, 884 (N.D.Ill.2006) (right to challenge evidence is "quite limited"). But cf. Martin, 993 F.2d at 829 (noting that even under these constraints the "[t]he constitutional rights of individuals, including the right to due process, are superior to the government's treaty obligations").
After a judge issues a certificate of extraditability, "[t]he larger assessment of extradition and its consequences is committed to the Secretary of State." United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir.1997). The statute's "bifurcated procedure reflects the fact that extradition proceedings contain legal issues peculiarly suited for judicial resolution, such as questions of the standard of proof, competence of evidence, and treaty construction, yet
Framed by this broad discretion, the Secretary is not required to extradite the fugitive named in a certificate of extraditability. She may, in the exercise of her discretion, decline to do so. See 18 U.S.C. § 3186 (Secretary "may" order the fugitive to be delivered to the requesting country); Lo Duca v. United States, 93 F.3d 1100, 1103-1104 (2d Cir.1996) ("Pursuant to its authority to conduct foreign affairs, the Executive Branch retains plenary discretion to refuse extradition").
Although Nunez agrees in his post-hearing memorandum that the sole issue is probable cause, his arguments go beyond the contours of a probable cause hearing and morph into jury-type arguments more appropriately made at a trial. This approach is incorrect because "extradition hearings under § 3184 are in the nature of a preliminary hearing." Afanasjev v. Hurlburt, 418 F.3d 1159, 1164 (11th Cir. 2005) (quoting Kastnerova v. United States, 365 F.3d 980, 987 (11th Cir.2004)). Accordingly, the "magistrate does not inquire into the guilt or innocence of the accused." Id. Instead, he looks only to see if there is evidence sufficient to show probable cause. Id. (internal quotation marks omitted); accord Kastnerova, 365 F.3d at 987.
"The existence of probable cause" means "the existence of a reasonable ground to believe the accused guilty of the crime charged." Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th Cir.1971) (emphasis added); see also Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 66 L.Ed. 956 (1922) ("The function of the committing magistrate is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction"). "Competent evidence to establish reasonable grounds is not necessarily evidence competent to convict." Fernandez v. Phillips, 268 U.S. 311, 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925); accord Escobedo v. United States, 623 F.2d 1098 (5th Cir. 1980); Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir.2006); Sindona v. Grant, 619 F.2d 167 (2d Cir.1980).
Although Nunez argues that the Dominican Republic and/or the United States should have arranged for live witness testimony at the extradition hearing, this approach is not supported by the relevant case law authority.
In fact, an extradition hearing is even more limited in scope than a preliminary hearing. For example, cross examination of government witnesses is improper. Charlton v. Kelly, 229 U.S. 447, 462, 33 S.Ct. 945, 57 L.Ed. 1274 (1913) ("`[T]he cross-examination of the witnesses for the prosecution is certainly improper'") (quoting United States v. White, 28 F.Cas. 588 (1807)); Messina v. United States, 728 F.2d 77, 80 (2d Cir.1984) ("As in the case of a grand jury proceeding, a defendant has no right to cross-examine witnesses or introduce evidence to rebut that of the prosecutor"); accord In re Extradition of Romeo, No. 87-0808RC, 1987 WL 10373, at *2 (D.Mass. May 1, 1987); In re Surrender of Ntakirutimana, No. CIV. A. L-98-43, 1998 WL 655708, at *30 (S.D.Tex. Aug. 6, 1998) (
As noted above, Nunez has expressly conceded that his evidence is intended to
The Court
Although the Court will later in this Opinion explain its conclusion on a witness-by-witness basis, it is helpful to first address several of Nunez's arguments concerning the types of evidence which he contends this Court should consider:
First, Nunez contends that the Court has already decided that his evidence should be considered merely by allowing him to present that evidence at the hearing. (See, e.g., Hr'g Tr. Vol. III, DE#70, p. 88 ("we have the presentation of some facts on the defendant's part which this court has permitted and allowed")). That is not the Court's position, however.
Repeatedly during the extradition hearing itself, the Court cautioned that it was reserving judgment on whether the evidence it allowed Nunez to present would be deemed relevant in its ultimate decision-making process. (See, e.g., Hr'g Tr. Vol. I, DE#68, pp. 35, 76 ("I understand the government's position and I will be able later on to determine what weight if any to give" to certain evidence; acknowledging that the Government had "a very significant argument and position to take as to most, if not all, of these exhibits because in the government's view they are beyond the scope of this particular extradition hearing," and noting that evidence allowed to be introduced "may or may not have any relevance later to this proceeding") (emphases added)).
As the Government itself recognized, one virtue of the Court's approach in giving wide latitude to the fugitive as to his presentation of evidence is that the Court is now in a very good position to assess whether the evidence Nunez was allowed to put on is in fact explanatory or contradictory
Second, Nunez does not cite any authority, controlling or otherwise, in which a court has held that evidence of the kind at issue here — most importantly, evidence challenging the results of the autopsy conducted by two expert forensic pathologists, and testimony that seeks to contradict another person's depiction of events that transpired shortly before the shooting — may be considered by a magistrate judge presented with an extradition request. Extradition courts permit the defendant to offer explanatory evidence, not contradictory evidence, because the intention is "to afford an accused person the opportunity to present reasonably clear-cut proof which would be of limited scope and having some reasonable chance of
Third, Nunez does not cite, and the Court has not found, any case in which such evidence would be appropriate in a domestic preliminary hearing or a grand jury proceeding, the closest analogues to an extradition proceeding.
Fourth, Nunez suggests that, notwithstanding the well-established law holding that contradictory evidence should not be considered in an extradition proceeding, those cases cannot mean what they say because Congress by statute has decided to give the fugitive a right to a judicial hearing. (See, e.g., Hr'g Tr. Vol. III, DE#70, p. 87). That suggestion is unpersuasive. The issue is not whether Nunez has a right to a hearing; it is whether the evidence he seeks to admit to contradict or undermine the Government's proof falls within the scope of the hearing allowed by statute. Likewise, the issue is not whether the hearing itself is rendered meaningless if Nunez is not permitted to have his defenses to criminal liability fully litigated at the probable cause stage. For example, the hearing still allows Nunez to claim that the crime charged is not covered by a valid extradition treaty, that he is not the person sought by the requesting state, or even to present explanatory evidence concerning probable cause, permitted by applicable case law. See Collins, 259 U.S. at 315-17, 42 S.Ct. 469.
Regardless of whether it is described as contradictory evidence or evidence seeking to negate the requisite intent, Nunez's evidence is beyond the scope of an extradition hearing. See generally RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 476 cmt. b (1987) ("
In his post-hearing memorandum, Nunez argues that probable cause is "having more evidence for than against." (DE#74-1, p. 16).
Substantial evidence of criminal intent need not be adduced to establish probable cause. Indeed, the Eleventh Circuit has held that, in at least some contexts, probable cause that a person has committed a crime requiring proof of intent may exist absent any evidence of criminal intent other than the suspect's commission of the underlying prohibited conduct. See, e.g., United States v. Everett, 719 F.2d 1119, 1120 (11th Cir.1983) ("While intent is an element of the crime which must be proved at trial, it is not necessary in order to establish probable cause to arrest"); accord Jordan v. Mosley, 487 F.3d 1350, 1356 (11th Cir.2007) (this "Circuit has concluded that, even for a criminal statute that requires proof of an intent to defraud for a conviction, an arresting officer does not need evidence of the intent for probable cause to arrest to exist") (emphasis added); Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.2002) ("That the officers had no specific evidence as to this element, such as would convict Dahl at trial, did not prevent them from having probable cause to make the arrest") (citing Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (
Assuming, arguendo, that some specific evidence of intent (i.e., evidence other than the fact that the defendant pulled the trigger
In other words, assessing criminal intent generally involves the exact kind of inquiry that the trier of fact is charged with conducting in a trial-type proceeding — the precise type of inquiry that is neither allowable nor practicable at the preliminary hearing stage. See Charlton, 229 U.S. at 461-62, 33 S.Ct. 945. That is particularly so in the context of an extradition hearing, where the relevant witnesses will generally be unavailable. See generally Freedman v. United States, 437 F.Supp. 1252, 1267 (N.D.Ga.1977) (agreeing with the extraditee that the record evidence "is not overly convincing of petitioner's guilt and complicity" and noting that the alleged co-conspirators were acquitted in a case involving fraud-related charges arising from the sale of securities but nevertheless finding probable cause to issue a certificate of extradition to Canada).
The seeds for this extradition proceeding were planted in August 1996, when Francisco Alberto Andujar-Mejia, the father of Francisco Alberto Andujar-Tejada, filed a criminal complaint with the Dominican Republic National Police, accusing Nunez of murdering his son. (DE#1). The General Prosecutor of the National District filed criminal charges against Nunez in August 1996, accusing him of committing the homicide of Francisco Andujar-Tejada.
According to the Government's submission, Nunez remained in custody until late December 1996, when he was released on bail pending his trial. In September 1997, the Supreme Court of Justice revoked Nunez's bail and ordered his return to prison. In March 1999, a pre-trial judge issued an order accusing Nunez of committing the homicide of Francisco Andujar-Tejada and sent his case to criminal court. The Dominican Republic's extradition package explains that in September 1999 the Prosecutor General gave the authority to hear the criminal case against Nunez and several court dates were set that required Nunez's personal appearance. The package also details that in July 2000 the presiding judge notified Nunez that, if he did not appear before the court as scheduled, then he would be held in contempt of court. Nunez failed to obey that order and Nunez was convicted in absentia for murder on November 2000.
The Government's Extradition Request (DE#17) consists of a declaration from an attorney advisor with the United States Department of State, a diplomatic note, an affidavit in support of the requested extradition, copies of sentences issued by the Court of Santo Domingo, a photograph of Nunez, the autopsy report, a declaration and witness statements.
The United States did not introduce any live witness testimony at the extradition hearing, a circumstance which Nunez criticizes. In his post-hearing submission, Nunez says "the DR should have sent Dr. Velez to testify as a live witness to explain
Nunez's comments are correct, but they are not legally significant. It is exceedingly rare for the Government to submit anything other than documents in support of an extradition request. In fact, the United States Supreme Court has explained that one of the principal objectives of the extradition statute is "to obviate the necessity of confronting the accused with the witnesses against him" by enabling the requesting country to meet its burden of proof through documents subject only to requirements necessary to guarantee their authenticity. Bingham v. Bradley, 241 U.S. 511, 517, 36 S.Ct. 634, 60 L.Ed. 1136 (1916). Moreover, the United States Supreme Court has succinctly summarized another benefit of having a documents-only extradition analysis: requiring the requesting country "to send its citizens to another country to institute legal proceedings would defeat the whole object of the treaty." Id.
18 U.S.C. § 3190, entitled "Evidence on [extradition] hearing," is another reason to discount Nunez's criticism of the Government's failure to present live witness testimony at the hearing. Specifically, the statute provides that "depositions, warrants or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated...." Framed by this standard, courts routinely conclude that hearsay evidence is admissible in extradition proceedings, even if the substantive law of the requesting country might not permit it. O'Brien v. Rozman, 554 F.2d 780 (6th Cir.1977) (holding that hearsay evidence in the form an affidavit from a foreign police officer, describing the evidence against an extradition defendant and attaching copies of signed statements, was admissible); see also generally MICHAEL ABBELL, EXTRADITION TO AND FROM THE UNITED STATES, § 4-2(10)-(11) (2010) ("a requesting country ordinarily submits its evidence in support of an extradition request to the United States solely
Most recent United States extradition treaties require a probable cause showing only if the fugitive has merely been charged but not yet convicted. If a person was already convicted in the requesting country, the more recent treaties typically only require that the requesting country present an authenticated or certified copy of the sentence or judgment of conviction and proof that the requested person is the same person at issue in the judgment or sentence. See generally MICHAEL ABBELL, EXTRADITION TO AND FROM THE UNITED STATES, § 4-2(10)-(11) (2010), § 3-2, p. 101.
In Nunez's situation, however, his conviction (for which he received a 20-year sentence) in the Dominican Republic was in absentia, which raises potential due process concerns.
In the absence of a treaty provision governing an in absentia conviction scenario, federal courts require the requesting country to submit the same evidence in support of an extradition request that it would have needed to submit if the defendant had only been charged with, but not convicted of, the offense for which
The United States does not rely on the in absentia conviction and concedes that a probable cause finding is required for an extradition certification against Nunez.
On the flip side of this issue, Nunez advises (DE#74-1, p. 4) that he believes the in absentia conviction means that he will not receive a trial on the merits in the Dominican Republic if he were to be extradited. Nevertheless, he candidly concedes that this issue "should not factor into the Court's consideration" because "the scope of this Court's order is on the issue of probable cause." (Id.) This concession conforms to established law, which provides that "an extradition magistrate does not have discretion to ... make an inquiry into the conditions that might be encountered by a fugitive upon return to the requesting country." Prasoprat v. Benov, 294 F.Supp.2d 1165, 1169 (C.D.Cal. 2003). Cf. Sindona, 619 F.2d at 174-75 (degree of risk to fugitive's life from extradition is "an issue that properly falls within the exclusive purview of the executive branch").
Given this limitation, which is sometimes known as the "rule of non-inquiry," it is hardly surprising that the Undersigned does not have authority to condition a certification of extraditability on a guarantee that Nunez will obtain a new trial on the homicide charge for which he was convicted in absentia.
The decision to impose conditions on an extradition is a non justiciable political question committed to the Secretary of State. See, e.g., Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir.1960) (noting that "the Secretary of State as a condition of surrender of persons demanded ... has required... that there be a retrial of persons who have been convicted in absentia," observing that the court had "discovered no case authorizing a federal court, in a habeas corpus proceeding challenging extradition from the United States to a foreign nation, to inquire into the procedures which await the relator upon extradition," and explaining that "the conditions under which a fugitive is to be surrendered to a foreign country are to be determined solely by the non judicial branches of the Government") (first emphasis supplied); see also Martin, 993 F.2d at 829-30 (11th Cir.1993) ("the
A rule permitting the Undersigned to condition a certificate of extraditability on Nunez's receipt of a trial on the merits in the requesting country would generate myriad difficulties:
For example, if this Court's probable cause analysis may be conditioned on a determination that a person convicted in absentia be afforded a new trial, then the Court would have to extend more favorable treatment to a fugitive who wrongfully and illegally fled from the jurisdiction of the requesting state than it would to otherwise similarly situated persons who did not commit that additional wrong of fleeing (and who therefore had a trial or proceeding, as opposed to an in absentia conviction). It would be fundamentally illogical that a fugitive should be rewarded for his wrongful and illegal conduct.
To provide another problematic consequence, an approach that gives the extradition magistrate the authority to impose humanitarian conditions on extradition would inevitably lead to substantial inconsistency in the Nation's conduct of its foreign relations — and would result in similarly situated fugitives being treated differently.
Finally, the Secretary of State is in a better position than this Court to assess the fairness of a foreign sovereign's criminal justice system and to balance this Nation's treaty obligations and foreign relations interests against its eminently legitimate concern for the future welfare of a person residing (lawfully or not) within our borders.
Some evidence in this case is not in dispute. Setting aside any additional evidence, these uncontested facts
Specifically, it is undisputed that the victim in this case died from a gunshot wound, that the fatal bullet was fired from Nunez's gun, that Nunez was holding that gun at the time it was discharged,
Those facts,
For example, in Whitehead v. Dormire, 340 F.3d 532 (8th Cir.2003), a criminal defendant convicted of second degree murder challenged his murder conviction in part on the ground that the evidence at trial was insufficient to prove he acted "purposely" when he shot his girlfriend. Whitehead's defense at trial was that he accidentally shot his girlfriend. According to his trial testimony, he loaded a rifle because he planned to scare her by telling her that he was going to kill himself. Defendant further testified that he held the gun across his chest when his girlfriend returned to the bedroom, that his girlfriend came toward him and pushed him across the chest when he told her he planned to kill himself. But Whitehead claimed that he fell onto the lower part of the bed, landing flat on his back, causing the gun to discharge accidentally. The circuit court held that there was more than sufficient evidence to support the jury's finding that he acted purposely and further noted that the jury was not required to credit his version of events.
Likewise, in State v. Hayes, 70 So.3d 27 (Ct.App.La.2011), the state appellate court upheld a second degree murder conviction (with a sentence of life at hard labor with no chance of parole, probation or suspension of sentence) in the face of a challenge that the evidence was insufficient to support the conviction. In that case, Hayes admitted that he was present when the gun was fired but maintained that the shooting was accidental and unintentional. According to Hayes, the victim, who was sitting in a locked car and speaking on the telephone, "freaked out" and grabbed the barrel of the gun when she saw the weapon. Hayes claimed that his girlfriend "banged" him when he told her to place the gun in the glove compartment and the gun ejected. The expert forensic pathologist who provided the autopsy report acknowledged that the gun was close enough to the victim's body for the victim to have touched the gun with her hand. He also noted that he was not testifying that it was impossible that an accident occurred. Hayes argued that the evidence was insufficient to prove he had the specific intent to kill the victim. Instead, he testified that his actions amounted to no more than a tragic accident — a case of good intentions but poor judgment. The appellate court held that the jury did not act unreasonably in convicting Hayes and noted that the jury "made a credibility determination and rejected the defendant's hypothesis that the shooting was accidental."
In addition to the significant and undisputed fact that Nunez pulled the trigger on the gun which fired the fatal shot which killed the victim, there is considerably more evidence to support a probable cause determination on the issue of whether Nunez committed the homicide. Considered together, these factors generate more than
1. Perhaps most importantly, it is undisputed that the victim
Given this fact, it is significant that Nunez's own expert witness, Dr. Wright, conceded that,
2. Two forensic pathologists in the Dominican Republic expressly and unambiguously concluded that "[t]he cause of death [was] homicide." (DE#23-2 at 51). In particular, those two experts found that the minimum possible distance between the victim and the mouth of the gun, when considered alongside the fact that the victim died from a gunshot wound to the back of the head, effectively ruled out the possibility that the defendant shot the victim by accident. (Id. at p. 51 (finding that the death of the victim "was due to a distance wound made by a projectile from" Nunez's gun)).
3. It is undisputed that the fugitive and the victim had some kind of altercation just before Nunez shot and killed the victim. (DE#23, Nunez proffer, p. 9 ("Mr. Nunez does not deny the altercation with Tejada that led to the accidental discharge of the firearm that was up for grabs")). Nunez and his cousin say that the fight centered on Nunez's alleged well-intentioned refusal to allow the victim to drink and drive. (See DE#23 pp. 4-5, 11; DE#28-3, p. 6). The available record evidence, however, does not rule out the possibility that the struggle between the defendant and the deceased arose out of some other dispute. For example, the two may have had a fight about the presumably sensitive matter that Nunez sought to discuss with the victim in private shortly before the shooting. (See DE#28-3, p. 10 (statement from Cesar that Nunez told Cesar to leave Nunez and Tejada alone in the Jacuzzi because Nunez "wanted to talk to FRANCISCO [Tejada] about something")). Moreover, the fight may have involved the same dispute that prompted Nunez's aggressive conduct towards the victim earlier that evening. (See id. ("I saw EDDY throwing three rocks at FRANCISCO while he was in the Jacuzzi. He did not hit him with any of them, but then he made a move like to beat Francisco with a bottle....") (emphasis added)).
4. Competent record evidence tends to show that Nunez intentionally sought to inflict (or, at the very least, threatened to inflict) serious bodily injury on the victim shortly before the time of the shooting. In particular, in a statement to the authorities, Julio Cesar related that Nunez first threw three rocks at the victim and then made as if to beat the victim with a glass bottle shortly before the time of the shooting. (DE#28-3, p. 10).
5. Competent record evidence tends to show that Nunez repeatedly sought to be alone with the victim a short time before the shooting. According to Julio Cesar, Nunez and Tejada were bathing in a Jacuzzi
6. The record contains evidence that the defendant repeatedly sought to prevent the victim from leaving the defendant's home on the night of the alleged crime. (See id. at pp. 9-10 (noting that "[W]hen FRANCISCO wanted to leave, EDDY would sit him down and tell him not to go, where was he going anyway, and then they decided to bathe in the Jacuzzi" and stating that, when Cesar went out to the Jacuzzi because he wanted a ride home from Tejada, Nunez "told [Cesar] to tell Emil to take" Cesar home)).
The record contains evidence that the defendant has a history of engaging in aggressive and reckless conduct, including senseless, unprovoked, and potentially lethal bouts of violence. When asked why Nunez threw three rocks at Tejada and then sought to hit Tejada with a rum bottle, Cesar stated that Nunez acted like that "all the time" and generally had a "VERY AGGRESSIVE" personality. (Id. (emphasis in original)). Cesar noted that "EDDY ... was all the time drawing his gun and pointing it at friends and everyone that happened to be nearby." (Id. at 11) ("he liked to play with his gun and point it at us;" "one day in front of the church San Judas Tadeo, we were hanging out together and EDDY just for the hell of it shot his gun six times").
7. Record evidence indicates that Nunez consumed a significant amount of alcohol on the night of the shooting. (See DE#28-3, p. 2 ("EDDY drank two bottles and [a] half [of rum] and one beer"). Alcohol consumption generally diminishes inhibitions, and other record evidence (as noted above) shows that Nunez had a predisposition to engage in reckless and unprovoked bouts of potentially lethal violence. It is not unreasonable to suppose that, if exacerbated by considerable alcohol consumption, Nunez's predisposition might have caused him to respond to a heated disagreement more aggressively than he otherwise would have.
8. Competent record evidence tends to show that Nunez's maid was woken up in the middle of the night by the lady of the house
In the Court's view, this additional evidence is more than sufficient to establish a mere "substantial chance" that Nunez intentionally shot a man he concededly shot and killed. The case law fully supports that finding. See, e.g., Extradition of Harusha, 2008 WL 1701428, at *6 (evidence that fugitive was present at scene and shot the victim was "more than sufficient" to establish probable cause for homicide);
Notably, Nunez does not cite any case in which a court refused extradition in similar circumstances.
The Government correctly notes, in its post-hearing submission, that it has consistently taken the position that Nunez's evidence is impermissible contradictory evidence. Although Nunez has long been aware of that position, he has never even tried to argue that the evidence he asks this Court to consider is permissible explanatory evidence within the meaning of the case law. To the contrary, Nunez has expressly conceded that his evidence is intended to contradict or challenge otherwise competent evidence in support of the Government's submission. (See, e.g., Hr'g Tr. Vol. III, DE#70, p. 88 ("[W]hat we have in this case is a version of facts submitted by the government. We have
The Court
Although the contradictory nature of the evidence means that this Court should not consider it as part of the probable cause analysis, the Court will review Nunez's evidence and explain why it will not be considered (and why it is insufficient to prevent the requisite probable cause finding):
First, Emil's testimony concerning the allegedly accidental nature of the shooting constitutes impermissible
Second, even if Emil's testimony did not contradict the Government's proof (which it does), Emil's testimony cannot completely obliterate probable cause because Emil could not possibly know with certainty what Nunez was thinking when he pulled the trigger. The absolute most that Emil can say is that it appeared to him that Nunez did not mean to shoot and kill the victim. Even if accepted at face value and deemed credible, this evidence might well be sufficient to create reasonable doubt concerning Nunez's guilt — but it does not "obliterate" the myriad other sources of evidence tending to show that Nunez did act with the requisite criminal intent.
Third, this Court could not conclude that Emil's testimony was adequate to obliterate completely the probable cause without also deciding to credit his testimony
This Court could not possibly make such a delicate credibility determination without having heard any testimony from the two forensic pathologists, Julio Cesar, and other potential witnesses the Government might seek to call at a plenary trial. A credibility determination of that kind should be made by the ultimate finder of
Emil's testimony contradicts a large portion of the record evidence appropriately submitted by the United States and it would be inappropriate under clearly established law for the Undersigned to weigh such competing evidence. There are additional examples that clearly illustrate this point:
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Fourth, even if this Court were permitted to weigh Emil's testimony against other evidence in the record, many aspects of Emil's testimony exhibited bias, were implausible, or otherwise problematic. Those problems, standing alone, would preclude this Court from concluding that Emil's testimony completely obliterates probable cause. For example:
• Emil is Eddy's cousin and has known Eddy his "whole life." (Hr'g Tr. Vol. I, DE#68, p. 48). While Emil said that he and Francisco were "like brothers," Emil himself acknowledged that he had known Francisco for only about seven months at the time of the shooting, and that his relationship with Eddy was "substantially closer" than his relationship with Francisco. (Id. at pp. 48-49). This demonstrates, or could demonstrate, bias.
• Emil testified that Eddy's gun was in his bathing suit even though Eddy was in his own home and had just got out of the
• Emil claimed to be "quite sure" that he knew "exactly what [Eddy was] thinking" at the time of the extradition hearing itself. (Id. at p. 49). That suggests overconfidence and/or a conscious determination to help his cousin by making exaggerated claims. It could also be reflective of a lay witness who is not familiar with American legal proceedings and does not understand the difference between personal knowledge and rank speculation. Whatever the reason for the answer, though, the significant point is that the answer is problematic, cannot simply be accepted at face value and suggests that other answers from Emil should be scrutinized.
• Emil testified that Francisco did not "offer any resistance" whatsoever when Emil, at Eddy's instigation, physically took Francisco's car keys from his pocket. (Id. at p. 28). Yet Emil also testified that Francisco was so upset that Eddy would not give him back his keys that he went searching for Eddy's gun. This testimony seems to paint two distinctly different portraits of Francisco on the night he was fatally shot and is either inherently inconsistent or portrays Francisco as having wild mood swings.
• Emil said that he, Eddy, Francisco, and Julio Cesar had a standard practice when they drank: the person who drank the least was "always" the one who drove the others home after a party. (Id. at pp. 33-34). Given this testimony about the standard practice, it seems unlikely that Francisco was so upset over conduct which was nothing more than the standard practice that he went to look for a gun.
• Emil said he could see and hear — through a window — virtually everything that Eddy and Francisco did and said and to one another when they were in the Jacuzzi, even though Emil was lying down on a bed for at least part of that time. (Id. at pp. 52-53, 55 (Email stating that "Unless they were telling each other a secret, I heard everything;" that he was sure Eddy did not throw rocks at Francisco "[b]ecause the two of them I could see through the window," even though Emil himself acknowledged that normal movements of the head would have caused him to lose his "fixed sight" on Eddy and Francisco; and that it was not even possible that Julio Cesar was telling the truth about certain things he saw and heard when Emil was lying on the bed in another room)).
• Emil testified that Julio Cesar asked Emil to drive him home. (Id. at p. 22). But Emil also testified that he did not have a car. (Id. at p. 24). The suggestion is, at best, confusing. Why would Cesar ask Emil to take him home if Emil did not even have a car? Moreover, it was Francisco (Julio Cesar's cousin) who drove Julio Cesar to the party, so it seems entirely plausible that Julio Cesar would expect and seek to go home (as he told the police) with Franciso, the person who took him to Eddy's in the first place, not with Emil.
• Emil said that he took Francisco's keys and gave them to Eddy just before the shooting. (Id. at p. 27). But he also said that "the key was not to be found" just seconds or minutes later, and that
• Emil's testimony exhibited a highly selective memory. For example, Emil testified that he did not remember whether he arrived at Eddy's house with Julio Cesar. (Id. at p. 18). He also said he did not remember whether Eddy threw rocks at Francisco while the two were sitting in the Jacuzzi. (Id. at p. 26). Emil did not remember telling the police that he went to lie down in Eddy's room because he was sleepy. (Id. at p. 53). Yet Emil claimed to remember the exact order in which the four men were drunk some 15 years ago. (Id. at p. 21).
First, Dr. Wright purported to explain the conclusions and the validity of those conclusions. That is classic contradictory evidence, to be presented at a trial on the merits, but not at a preliminary hearing.
Second, Dr. Wright's testimony, even if it were deemed "explanatory," does not and could not completely negate probable cause. Indeed, his testimony would be inadequate to negate probable cause even if it created reasonable doubt as to Defendant's guilt.
• Even if Dr. Wright's testimony could conclusively determine that the wound was not a distance wound, it would not rule out the possibility that the shooting was intentional. (Hr'g Tr. Vol. II, DE#69, pp. 33-34, 57 (acknowledgement that "a person [can] intentionally shoot and kill a victim from a short or intermediate distance")).
• Dr. Wright did not say the autopsy result was wrong. Rather, he said he could not prove whether it was correct based on the information available to him, which was not the same information available to the pathologists who conducted the autopsy. For example, he stated that it was "certainly" "possible that the two forensic pathologists who prepared the [autopsy] report prepared a scientifically accurate report," but that, on the basis of the information he had available to him, he could not "prove that it's accurate to a reasonable degree of [scientific] certainty." (Hr'g Tr. Vol. II, DE#69, p. 45; Hr'g Tr. Vol. III, DE#70, p. 102 ("He's not saying that it's wrong. But he says you can't say that it's right") (emphasis added)).
• The sole basis for Dr. Wright's evaluation was his review of the autopsy report. (Hr'g Tr. Vol. II, DE#69, pp. 15, 17 ("Q. What did I give you? A. The autopsy report in Spanish and a translation that seemed to be pretty accurate. That was basically it;" also noting that "[i]t would have been very helpful to have photographs taken at the time of the autopsy," but "I didn't get to see the photographs of the autopsy")).
• Dr. Wright himself acknowledged that rates of decomposition are "very variable," and that
• As the doctor acknowledged, the two expert pathologists who did the autopsy had access to more information than he did. Most importantly, they saw the body and he did not. Moreover, even assuming
• Dr. Wright's testimony, to his credit, was conditioned with caveats and qualifications. (E.g., id. at pp. 18, 20, 22-23, 25-26, 40-41 (stating that the "state of decomposition" would "depend[] on what was done with the body" and opining that the state of decomposition would have been "advanced" if there was no embalming, but acknowledging that "[t]here might have been" embalming; agreeing that "maybe there was embalming done;" testifying that he had "a little problem with this being called a distance wound," since the "amount of decomposition" which occurred, "in my opinion, probably precludes the ability to tell that," even though the doctor admitted that he did not observe the state of decomposition and was making negative inferences based on the description in the autopsy; explaining that "a ricocheted bullet makes a nonround hole," and that "it isn't entirely clear whether [the entrance wound] is completely circular or not;" admitting that some embalmed bodies "look pretty good [even] after a year," that "I don't know what I will find until I find it," and that "I won't know until I look" [at the body itself]; stating that he would "probably not" have been able to make a distance determination even with photographs, which he did not have; admitting that the "decomposition process varies a relatively great amount" from case to case; noting the body was likely "somewhat brittle and discolored;" stating that "[e]xactly how much you can usually tell from photographs," which the doctor did not have or see) (emphasis supplied)). In light of those many qualifications, his testimony could not be said to successfully and completely discredit the two Dominican pathologists' conclusions, and therefore is inadequate to negate probable cause.
• The "sum and summary" of Dr. Wright's testimony was that he could not agree "to a reasonable degree of medical and forensic certainty that the cause of death of Francisco in this case was homicid[e]." (Hr'g Tr. Vol. II, p. 32). The question before this Court (an extradition court) is not whether the autopsy conclusions are valid to a "scientific certainty;" it is whether there is competent evidence to support a "substantial chance" that the defendant is guilty. Therefore, even if considered and completely accepted, the core of Dr. Wright's testimony is insufficient to preclude a conclusion that there is probable cause.
Third, much of Dr. Wright's testimony affirmatively helps the Government's case. In particular, he testified:
• A gunshot wound to the back of the head supplies competent evidence of intent to kill. (See, e.g., Hr'g Tr. Vol. II, DE#69, p. 45 (acknowledging that his own report stated that the bullet's trajectory "appears to have been from back to front entering the back of the head," and agreeing that "as a general principle, a gunshot wound to the back of the head ... would be deemed to supply at least some evidence, not necessarily conclusive evidence, but at least some evidence that a shooting was intentional").
• Evidence consistent with a close contact wound was not present in the autopsy. (Id. at p. 21 (noting that the autopsy report did not mention the kind of deposits on the skin that would result from a close contact wound)).
Finally, Nunez's reliance on Dr. Wright's testimony would require this Court to resolve a highly technical issue of forensic pathology by
Nunez urges this Court to assess whether there is more evidence for his guilt than against (or "sufficient probable cause") after considering all of the evidence Nunez would be permitted to present at a full-blown criminal trial.
Nunez wants the Undersigned to conclude that "the Velez/Paez autopsy is useless." (DE#74-1, p. 25). Pointing out that "it may be that nobody will ever really know, 100%, what Eddy's true intentions were when he fired his pistol almost 15 years ago." (DE#74-1, p. 24). Nunez
Nunez advocates the position that "there was no
Not only do these contrary-type arguments depend on an outdated and inapplicable definition of probable cause, but they are foreclosed by directly controlling authority.
Moreover, Nunez's argument would generate extraordinarily troubling practical implications for the conduct of extradition proceedings and even for ordinary domestic criminal proceedings.
In order to rule in Nunez's favor, this Court would have to credit Emil's testimony over contradictory evidence in the record. But this Court has not seen all the evidence for the prosecution (just as a grand jury or a judge presiding over a preliminary hearing does not see all the evidence at that stage of the case). Instead, it has reviewed only the documentary evidence the Dominican Republic thought necessary to submit for the limited purpose of establishing probable cause. See, e.g., Sidali v. I.N.S., 107 F.3d 191, 200 (3d Cir.1997) (requesting state "is not required to present its entire case in this country").
If the Court were to rule in Nunez's favor, then it would send an unfortunate and undesirable message to requesting states which entered into treaties with the United States: To avoid the risk that the magistrate would allow the fugitive to mount a full defense and then credit the fugitive's contradictory evidence over the requesting state's necessarily less-compelling paper submissions, a state would need to submit all of its evidence at the probable cause stage, send all of its witnesses to the site of the extradition proceeding and be prepared to fully litigate any and all potential defenses to criminal liability as if the hearing were a full-fledged final trial. Such a message would work a dramatic, impracticable, and prohibited transformation in the conduct of extradition proceedings.
Nunez's position also carries troubling implications for domestic criminal investigations and prosecutions. If Nunez is correct that the Government has not in this case submitted competent evidence establishing probable cause, then a magistrate judge following the same probable cause definition would not sign a warrant for a murder suspect's arrest even if presented with a sworn affidavit reciting all of the evidence described above: i.e., that the victim died from a gunshot wound to the back of the head, fired from a gun held by the suspect; that the suspect pulled the trigger; that two forensic pathologists concluded that the forensic evidence ruled out the possibility that the shooting was accidental; that the suspect had threatened to inflict serious bodily harm on the victim shortly before he shot and killed him; and that the suspect's mother destroyed blood
These projected scenarios, which would be compelled by Nunez's view of probable cause, are troubling. They are troubling because it is virtually impossible to agree that the scenarios could happen under our criminal justice system.
To be sure, probable cause determinations in extradition cases are fact-specific, and the mere fact that one court issued a certificate of extradition in a different homicide case does not dictate whether another court would or should issue a similar certificate in another case. Nevertheless, decisions in other cases are analytically helpful when they discuss basic principles in factually similar cases.
The following extradition cases generate support for the conclusion that this Court should not consider the rebuttal-type evidence offered by Nunez and for the probable cause finding in the face of contradictory evidence:
In re Extradition of Pena-Bencosme, 341 Fed.Appx. 681 (2d Cir.2009). In this extradition-related lawsuit, the defendant filed a petition for a writ of habeas corpus, challenging his potential extradition to the Dominican Republic. The circuit court held that there was sufficient evidence to support the extradition judge's finding that there was probable cause to believe the defendant committed a
Id. at 683 (brackets and internal quotation marks omitted; emphasis supplied).
Castro Bobadilla v. Reno, 826 F.Supp. 1428 (S.D.Fla.1993), aff'd, 28 F.3d 116 (11th Cir.1994). In this extradition case, the government of Honduras sought to extradite one of its citizens who had been charged with murder in Honduras. Castro was arrested in Honduras but fled to the United States while receiving medical treatment. The magistrate judge found sufficient, albeit not overwhelming, evidence of probable cause to support the extradition. That court held that a review of the probable cause finding on petition for writ of habeas corpus is limited to "whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Id.
Significantly, a medical examiner testified about the "sloppy manner" in which the victims' bodies were examined in Honduras and noted specific inconsistencies in the investigation. Nevertheless, the court found that the medical examiner's testimony was insufficient to negate the government's evidence. The court found sufficient probable cause in the face of the contradictions in the evidentiary record.
Making a point which is directly applicable to the instant case involving Nunez, the Castro Bobadilla court explained that an 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." Id. at 1432.
In re Extradition of Harusha, 2008 WL 1701428. In this extradition case initiated at the request of the Albanian government, Harusha was convicted in absentia of murder and attempted murder, but he argued he fired in self-defense at two suspected thieves. Although the court noted that "[p]roof of a conviction gained in absentia does not constitute probable cause," id. at *6, n. 1, the court there determined that the following evidence sufficed for a probable cause finding for murder: Harusha and the victim had a dispute, Harusha shot and killed the victim and seriously injured the victim's son during the argument, eyewitness testimony identified Harusha as the shooter and another eyewitness saw Harusha running away with a gun in his hand after the shooting. In rejecting the self defense theory, the court emphasized that its "role is not to determine and not to offer any opinion as to whether the evidence is sufficient to justify convicting Harusha of murder or attempted murder." Id. at *6 (emphasis in original). Significantly, the court explained that "affirmative defenses, including self-defense, are not relevant in extradition hearings and
Quinn v. Robinson, 783 F.2d 776 (9th Cir.1986). The United Kingdom sought the extradition of Quinn, a member of the Irish Republican Army, in order to try him for a murder and for conspiracy to cause explosions in London. After a United States magistrate found Quinn extraditable, he filed a petition for a writ of habeas corpus. The district court determined that Quinn could not be extradited under the political offense exception. After the United States appealed, the circuit court concluded that the political offense exception was inapplicable and also held, in the face of an evidence-based challenge by Quinn, that the magistrate did not err in finding probable cause that Quinn murdered a police officer. In doing so, the appellate court noted that the evidence was "not overwhelming" and that Quinn "could not be convicted" if "that were all the evidence introduced at a murder trial." However, the Ninth Circuit relied upon the well-established rule that "it is not our role to determine whether there is sufficient evidence to convict the accused" and noted that "the magistrate does not weigh conflicting evidence and make factual determinations." Id. at 815.
Finally, Nunez asks this Court to condition the issuance of any certification of extraditability in this case on a guarantee that he will get a new trial on the homicide charge for which he was convicted
First, and most importantly, the decision to impose conditions on an extradition is a non-justiciable political question committed to the Secretary of State. See, e.g., Gallina, 278 F.2d at 79 (noting that "the Secretary of State as a condition of surrender of persons demanded ... has required ... that there be a retrial of persons who have been convicted in absentia," but observing that the court had "discovered no case authorizing a federal court in a habeas corpus proceeding challenging extradition from the United States to a foreign nation, to inquire into the procedures which await the relator upon extradition," and explaining that "the conditions under which a fugitive is to be surrendered to a foreign country are to be determined solely by the nonjudicial branches of the Government") (first emphasis added); see also Martin, 993 F.2d at 829-30 ("the rule of non-inquiry ... precludes extradition magistrates from assessing the investigative, judicial, and penal systems of foreign nations when reviewing an extradition request;" humanitarian argument should be directed to Secretary of State); Escobedo, 623 F.2d at 1107; In re Extradition of Harusha, 2008 WL 1701428 at *9, *11-*12 (noting representations that the Department of State would seek assurances that the fugitive be given a new trial, and including dictum in which the Court "urges the United States Department of State to honor [those] representations" and to condition the ultimate decision to extradite on such an assurance, but not conditioning the
Second, and somewhat relatedly, this Court is charged with the limited task of determining whether there is probable cause to believe that the fugitive committed the charged offense. Indeed, throughout this litigation Nunez himself has insisted that probable cause is the sole issue in dispute. Simple logic dictates that the question whether there is probable cause to believe that Nunez committed the charged offense in the past cannot turn on what may or may not happen to him in the future, if and when he is sent back to the requesting state.
Third, a contrary rule would have perverse and troubling consequences. If this Court's probable cause analysis may be informed by its determination that a fugitive convicted in absentia be afforded a new trial in the requesting country, then the Court would have to extend more favorable treatment to a fugitive who wrongfully and illegally fled from the jurisdiction of the requesting state than it would to otherwise similarly situated persons who did not commit that wrong. It cannot be the case that the fugitive should be rewarded for his wrongful and illegal conduct.
Fourth, the request is seemingly inconsistent with Nunez's earlier-stated position conceding that the issue of whether he will receive a trial in the Dominican Republic is not an issue for this extradition court.
In addition, courts have long recognized that the United States should, to the extent practicable, speak with one voice in matters of foreign policy and in the conduct of its foreign relations. Extradition magistrates around the country no doubt have honest and reasonable differences of opinion as to whether and in what circumstances an otherwise lawful and appropriate extradition should be resisted based
For the reasons set forth above, the request for a certificate of extraditability is
