MEMORANDUM AND ORDER

EDMUND F. BRENNAN, Magistrate Judge.

The parties have submitted their briefs and exhibit lists for the upcoming extradition hearing. ECF Nos. 140, 141, & 142. The government has filed two motions in limine seeking to exclude exhibits and witnesses (described infra). ECF Nos. 152 & 153. Ameen has filed oppositions to both motions. ECF Nos. 154 & 155. For the reasons stated hereafter, the government's first motion in limine (ECF No. 152) is granted in part; its second motion in limine (ECF No. 153) is denied.

Ameen has also filed a motion for reconsideration (ECF No. 148), to which the government has filed an opposition (ECF No. 157). That motion is granted in part.

Motions In Limine

Background

A. The Government's Evidence

In its memorandum of points and authorities, the government represents that it will rely on the extradition request transmitted by the Republic of Iraq. ECF No. 140 at 7. The government states that it "will not present any additional testimony or documentation as part of its initial presentation of evidence establishing the elements for certification of extradition." Id.

B. Ameen's Evidence

1. Exhibits

Ameen intends to rely on more than fifty exhibits. ECF Nos. 142-1 — 142-19.1 The court will list and offer a brief description of each:

2. Witnesses

Ameen has identified six specific witnesses he intends to call. They are:

Finally, the defense notes that it may seek to present witnesses from foreign countries if the court or government desire live or video testimony.

Legal Standards

"Admission of evidence in an international extradition proceeding is within the magistrate's discretion." In re Extradition of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986). Under general United States extradition law, authentication is the only prerequisite for admissibility of evidence.4 Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1406 (9th Cir. 1988). The authentication requirements for documentary evidence are found in 18 U.S.C. § 3190, which provides:

The court also looks to the relevant extradition treaty insofar as it contains provisions which bear on the admissibility of evidence. See Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1450 (9th Cir. 1987) (admissibility of evidence governed by "the general extradition law of the United States and the provisions of the [Extradition] Treaty . . . ."). With respect to the treaty in this case, the only relevant provision reads:

ECF No. 137-1 at 10 (Treaty Between the United States of American and Iraq, Article XI).

"Participation by the fugitive at the extradition proceeding is limited; he is not permitted to introduce evidence on the issue of guilt or innocence but can only offer evidence that tends to explain the government's case of probable cause." Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978). In Santos v. Thomas, the Ninth Circuit acknowledged the difficulty courts have often faced in distinguishing between "explanatory" and "contradictory" evidence. 830 F.3d 987, 992 (9th Cir. 2016). It offered the following summation of the difference:

Id. at 992-93 (internal citations omitted).

Analysis

I. The Government's First Motion In Limine

The government objects to four categories of exhibit evidence which Ameen intends to introduce at the extradition hearing: (1) alibi evidence; (2) character evidence; (3) impeachment evidence; and (4) forgery evidence. The court, as explained below, grants the motion in part.

A. Character Evidence

Evidence of Ameen's good character has no direct bearing on the question of probable cause. It is commendable, for instance, that Ameen had no criminal history in Turkey (Exhibit 28) and that he paid his taxes after coming to the United States (Exhibit 30). But these facts only bear on the crime in question, if at all, by way of broad, indirect proposition — if Ameen is generally a good man then it is less likely that he committed a specific bad act. They do not work to "obliterate" probable cause. Other courts have found as much. See Rios v. United States, Civil No. 10-2192 (PJS/FLN), 2011 U.S. Dist. LEXIS 26699, at *8-10, 2011 WL 915162 (D. Minn. Feb. 24, 2011) (finding "letters of recommendation attesting generally to Petitioner's good character" to be "more akin to contradictory evidence than explanatory evidence"); In re Extradition of Aguasvivas, No. 17-mj-4218-DHH, 2018 U.S. Dist. LEXIS 125979, at *17, 2018 WL 3614137 (D. Mass. July 27, 2018) ("Aguasvivas's character and alleged lack of a criminal record, as well as Aguasvivas's and Frank's movements months after the shooting, are irrelevant to the probable cause question before the Court.").

Based on the foregoing the court will exclude the following exhibits:

B. Alibi Evidence

The government correctly notes that, as a general principle, alibi evidence should be excluded from an extradition hearing insofar as it contradicts the government's evidence of probable cause. See Santos v. Thomas, 830 F.3d 987, 993 (9th Cir. 2016). Also fundamental to these proceedings, however, is a fugitive's opportunity to present evidence that "obliterates" probable cause. See Barapind v. Enomoto, 400 F.3d 744, 749 (9th Cir. 2005) ("[A] fugitive facing extradition can present his own evidence to explain away the requesting government's evidence of probable cause."). In reconciling these principles, the court concludes that alibi evidence that, at best, merely contradicts the government's evidence is properly excluded. On the other hand, alibi evidence that could realistically "obliterate" probable cause should be considered. See In re Extradition of Gonzalez, 52 F.Supp.2d 725, 739 (W.D. La. 1999) ("Evidence of an alibi defense is therefore admissible if it negates or obliterates probable cause, but not if it merely controverts the evidence of the requesting country."); In re Extradition of Valles, 268 F.Supp.2d 758, 772 (S.D. Tex., Mar. 31, 2003) ("Respondent's evidence of an alibi defense is therefore admissible if it negates or obliterates probable cause."); United States v. Andrade, No. 06-MC-9039, 2006 U.S. Dist. LEXIS 70040, at *10, 2006 WL 2729268 (D. Or. Sept. 25, 2006) (holding that "alibi evidence may be admissible if it absolutely negates or obliterates probable cause.")

There is, of course, a danger6 in so holding. Every fugitive seeking to offer alibi evidence would be inclined to argue that it is explanatory (or "obliterating") rather than contradictory. But a blanket prohibition on alibi evidence — no matter its strength — is more offensive to notions of justice. It would be manifestly unjust to prohibit a fugitive from presenting evidence that conclusively establishes that he could not have committed the crime he is charged with. To prohibit the introduction of such exonerating evidence would render these proceedings nothing more than a "rubber stamp." Santos, 830 F.3d at 1006 ("Our role here is indeed a limited one, but `[t]his is not to say that a judge . . . [in] an extradition proceeding is expected to wield a rubber stamp.'") (quoting Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011)). At this point, the court cannot say whether Ameen's alibi evidence "obliterates" the government's probable cause. The answer to that question will depend not only on the exhibits themselves, but on the arguments and presentations that accompany them at the extradition hearing.

For the foregoing reasons, the court finds that, in this case,7 the interests of justice militate in favor of admission of Ameen's alibi evidence.

C. Impeachment Evidence

The government moves to exclude evidence offered by Ameen to impeach the witness statements in the extradition request. The impeachment evidence at issue is broken into three categories: (1) recantation evidence; (2) contradictory witness statements; and (3) credibility and bias evidence. The court will address each category separately.

1. Recantation Evidence

The government is correct in arguing that recantation statements — defined as "a later statement that directly contradicts an earlier incriminating statement" — are properly excluded from extradition hearings. See Santos, 830 F.3d at 1019 ("To the extent an individual offers a later statement that directly contradicts an earlier incriminating statement, an extradition court cannot consider the later statement, as to do so would place it in the position of weighing the credibility of the two statements and determining which one is more believable.") Nevertheless, the evidence that government characterizes as "recantation evidence" and seeks to exclude in this case is explanatory rather than contradictory.

Ameen seeks to offer evidence that explains that the statements of Witnesses A and B do not purport to be eye-witness accounts and, instead, merely relate what another witness — Person 5 — is alleged to have seen:

ECF No. 142 at 30-31. The court has reviewed the statements in the extradition packet and finds that Ameen's characterization is essentially correct. Both statements indicate that "[a] witness was able to see the individual who shot [the victim] and he was the terrorist (Omar Abdulsattar Ameen Husayn al-Rawi) . . . ." ECF No. 137-1 at 38, 40. Nothing in the statements indicates that either Witness A or B was the eye-witness in question.8 Curiously, the statements then appear to represent that both Witnesses A and B picked Ameen out of a photographic array provided by the Iraqi court and identified him as the killer. It is unclear whether this identification was based on a presumption that the eye-witnesses account was correct — in which case the witnesses were merely confirming that they knew Ameen's physical appearance — or based on some other, unmentioned personal knowledge that Ameen was the killer. In light of the substantial uncertainty as to what the accounts in the extradition packet are actually representing, the court finds that the new statements offered by these witnesses in support of Ameen (Exhibits 34, 35, & 36) are more akin to explanatory9 evidence than "recantation" evidence. Thus, they do not run afoul of Santos and will be admitted.

The court agrees with the government that Exhibit 37 is contradictory10 evidence and must be excluded. This exhibit relates an interview with a witness ("Witness C") whose statement is not included in the extradition request. The witness offers an account of the killing identical to the one offered by Witness A in their interview at Exhibit 36. Unlike the account of Witness A, which serves to explain his statement in the extradition request, Witness C's interview statements are purely contradictory and offer only a different account of how the killing occurred. See Mainero v. Gregg, 164 F.3d 1199, 1207 n. 7 (9th Cir. 1999) ("[E]vidence that merely controverts the existence of probable cause, or raises a defense, is not admissible.").

3. Credibility and Bias Evidence

The Ninth Circuit has held that evidence attacking the credibility of government witnesses should be excluded. See Man-Seok Choe v. Torres, 525 F.3d 733, 740 (9th Cir. 2008) ("Choe further contends that the magistrate judge erred by refusing to allow him to conduct discovery on Ho's credibility, but this wasn't error because any such evidence wouldn't be admissible."); In re Extradition of Mainero, 990 F.Supp. 1208, 1218 (S.D. Cal. 1997) ("Evidence that conflicts with that submitted on behalf of the demanding party is not permitted, nor is impeachment of the credibility of the demanding country's witnesses."). The government contends that the following exhibits should be excluded on this basis:

The court agrees with the government and will exclude these exhibits in part. None of the foregoing exhibits may, at this time, be offered to attack Person 5's credibility. However, any of these exhibits, to the extent it is relevant, may be offered for the purpose of demonstrating that Person 5's statement in the extradition request is forged or inauthentic. In so ruling, the court notes that changing circumstances may give cause to revisit the exclusion of credibility evidence related to Person 5. It may turn out that the existence of probable cause depends on the statement of a single witness. Specifically, if the court ultimately determines that the other witness statements regarding the murder contained in the extradition request do not support probable cause — either because they were forged or because they never purported to have knowledge of Ameen's culpability in the first place — then it appears that probable cause will rest entirely on a single eye-witness statement (that of Person 5). Courts have held that "[t]he statement of a single witness may be sufficient to establish probable cause, provided that there is some corroboration and no basis for doubting the witness' veracity." In re Sandhu, No. 90 CR. Misc. 1 (JCF), 1997 U.S. Dist. LEXIS 7314, at * 30, 1997 WL 277394 (S.D.N.Y. May 23, 1997) (emphasis added). If those circumstances arise, the court will order the parties to brief the issue of whether evidence speaking to Person 5's veracity should be admitted for the court's consideration.

D. Forgery Evidence

The court declines to exclude exhibits related to evidence of forgery or falsified documents in the extradition request. By way of background, Ameen argues that the government recently provided his counsel with heretofore unseen handwritten statements from Person 5 and Witness A. ECF No. 148 at 2. Ameen contends that the witness signatures in the new hand-written statements raise serious questions of authenticity. Id. He claims they do not match the signatures for these witnesses in the extradition request. Id. at 2-3. It follows, he argues, that either the newly obtained statements are inauthentic or the witness documents in the extradition request are inauthentic.

The government argues that evidence of forgery or falsification would amount only to conflicting evidence and, thus, should be excluded. But evidence of forgery or falsification runs to the reliability of the statements underlying the extradition request. In Santos, the Ninth Circuit cautioned that the court's "function in an extradition hearing is . . . to ensure that our judicial standard of probable cause is met by the Requesting Nation." 830 F.3d at 1006 (quoting United States v. Linson, 88 F.Supp.2d 1123, 1128 (D. Guam 2000)) (emphasis added). Our standard of probable cause cannot be met by production of false or forged documents. Instead, it requires presentation of competent evidence. In re Mathison, 974 F.Supp.2d 1296, 1313 (D. Or. Sept. 25, 2013) ("In making a probable cause determination the district court does not weigh conflicting evidence or make factual determinations, but instead decides only whether there is competent evidence to support probable cause for the charged offense.") (emphasis added). Thus, the court finds that Ameen should be afforded an opportunity to show, if he can, that the documents supporting his extradition are forged.

II. The Government's Second Motion In Limine

In the government's second motion, it moves for an order excluding the testimony of all Ameen's proposed witnesses. ECF No. 153 at 1.

A. Custodians of Records for Facebook and UNHCR

As an initial matter, the government states that, to the extent the court admits exhibits 27 and 11 (and its attachments), it does not contest that a custodian of record sponsor their admission. Id. at 8-9. The court, as noted supra, will admit those exhibits. Thus, it will not exclude the custodians of records (if either proves necessary).

B. Handwriting Expert

Next, the court has already found that evidence related to the possible forgery of extradition request documents should be admitted. Accordingly, it will not exclude Ameen's handwriting expert. The government contends that "[e]ven to the extent that the handwriting expert's opinion could enhance the Court's understandings of the signatures, that opinion would be inadmissible contradictory evidence." Id. at 8. But as noted supra, the authenticity of the documents impacts their reliability and competency — elements that go beyond contradiction and which must be considered (and answered in the affirmative) if the court is to find probable cause.

C. Additional Witnesses from Foreign Countries

The government states that it does not want live or video testimony from any of the witnesses identified by the defense insofar as none would provide admissible evidence. Id. The court, based on its findings with respect to Ameen's exhibits, does not share that broad, exclusionary view. That being said, at this point the court does not foresee a need for live or video testimony from any of the witnesses who have provided declarations in support of Ameen. And Ameen has not specifically moved to introduce live or video testimony. He offers it only if the government and court desire it. ECF No. 144 at 1. Thus, this issue is not ripe.

D. FBI Special Agents

The government argues that, because the FBI agents were not involved with the Iraqi extradition request, any testimony they could offer would be irrelevant to the court's determination of probable cause. The court, based on the record before it, cannot adopt such an absolute view. This is not an instance in which a fugitive is engaged in pure speculation. The defense has pointed to evidence which, at the very least, raises the possibility that witness signatures in the extradition request were forged. And, in the face of that evidence, it behooves the court to allow Ameen a full and reasonable opportunity to present his case on that point. The court is aware — and indeed has itself stated on the record — that its role in this matter is limited. It has acknowledged that it is not empowered to preside over a trial on the merits. But any finding of probable cause must comport, at some basic level, with our nation's standards. Those standards dictate that probable cause cannot be based on fabricated evidence.

Counsel for Ameen has suggested, not unreasonably in the court's view, that the activities undertaken by the FBI agents in Iraq might position them to offer relevant testimony on the authenticity of the witness statements in the extradition packet.11, 12 It may be, as the government suggests, that these agents will have nothing meaningful to add on the issue of forged documents. But the court cannot make that determination at this stage, without knowing what the agents' testimony will be. Thus, it declines to wholly exclude the agents' testimony. Ameen may call13 the three agents discussed supra. His counsel may question these agents on issues related to the possible forgery of documents in the extradition request. At this juncture, the court declines to allow Ameen's counsel to question these agents on issues related solely to Person 5's credibility.

Motion for Reconsideration

Ameen moves, based on evidence recently provided to his attorneys by the government, for reconsideration of the court's previous ruling on his motion to compel. ECF No. 148. The government has filed an opposition. ECF No. 157.

Background

Ameen makes this motion based on the government's recent provision of hand-written statements from Person 5 and Witness A. As noted supra, Ameen argues that the new statements call the authenticity of the witness statements in the extradition packet into question. He also contends that ambiguities in the photographic identification procedure used by the Iraqi court support his motion. Specifically, Ameen notes that two of the photographs purportedly shown to Person 5 by the Iraqi court are dated May 22, 2018 — five weeks after the identification was supposedly made on April 15, 2018. Ameen states that an FBI report indicates that Person 5 made another identification on October 23, 2017. It is unclear, however, what procedures or photographs were employed in making that identification. Finally, Ameen references the provision of a potentially forged document14 to the FBI — contextualized above in footnote three. He notes that the government has not indicated what witness provided this potentially forged document.

Based on the foregoing, Ameen requests that the court direct the government to provide his counsel with: (1) an unredacted FBI 302 of Person 5; (2) the names of FBI Agents 1 and 2; (3) other known signatures of Person 5; and (4) the name of FBI Agent 3 (who investigated the possibly forged document) and other documentary evidence related to the possibly forged document.

Analysis

I. FBI 302 of Person 5

In its opposition, the government states that it has now provided the defense with a less redacted version of this 302. ECF No. 157 at 5. The recently provided document still contains redactions related to personally identifying information which, the government contends, would endanger witness safety if revealed. Id. The government states that it is unredacted as to the pertinent issues, however — photo identifications and signatures. Id.

In light of the foregoing representation, the court declines to order further production with respect to this document.

II. Names of FBI Special Agents 1 and 2

For the reasons stated supra, the court is inclined to allow the defense to call these agents as witnesses. Thus, it will order the government to disclose their names to the defense.

III. Other Known Signatures of Person 5

In its opposition, the government represents that it has not, as part of its criminal investigation, obtained any other signature for Person 5. Id. at 6. The court cannot compel the government to produce what it does not possess, and this request is denied on this basis.

IV. Name of FBI Special Agent 3 and Documentary Evidence

The court has already indicated that it will allow the defense to call this agent as a witness; the government is directed to provide his or her name to Ameen's counsel. The court will also direct the government to provide the relevant documentary evidence to the defense. Ameen's counsel argues that the documentary evidence could potentially implicate Person 5 in a different forgery and/or the signature on the forgery may match one of the other documents whose authenticity has been called into question. The government does not argue that the production of this evidence would endanger witness safety or compromise national security concerns.15 Nor does it argue that the production of this evidence would be overly burdensome in any logistical sense. Given the gravity of the authenticity concerns raised here, the court will grant this request.

Conclusion

Based on the foregoing, it is ORDERED that:

1. The government's motion in limine (ECF No. 152) is GRANTED in part:

2. The government's motion in limine (ECF No. 153) is DENIED;

3. Ameen's motion for reconsideration (ECF No. 148) is GRANTED in part:

4. Ameen's request for subpoenas for three FBI special agents (ECF No. 150) is GRANTED. The defense is to provide the Clerk's Office with this Order and the draft subpoenas for issuance.