623 F.2d 1098
Gaspar Eugenio Jimenez ESCOBEDO, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.
Gustavo CASTILLO, Petitioner-Appellant,
Donald D. FORSHT, U. S. Marshal, Respondent-Appellee.
Nos. 79-1480, 79-1490.
United States Court of Appeals,
Aug. 14, 1980.
John H. Lipinski, Miami, Fla., for Escobedo.
R. Jerome Sanford, Asst. U. S. Atty., Miami, Fla., Murray R. Stein, U. S. Dept. of Justice, Washington, D. C., for United States.
Weiner, Tunkey, Robbins, & Ross, P. A., Jeffrey S. Weiner, Miami, Fla., M. Cherif Bassiouni, Chicago, Ill., for Castillo.
Appeals from the United States District Court for the Southern District of Florida.
Before MORGAN, ANDERSON and RANDALL, Circuit Judges.
R. LANIER ANDERSON, III, Circuit Judge:
This is an appeal from orders denying requests for habeas corpus relief in international extradition proceedings. On December 8, 1977, the Government of Mexico, pursuant to the United States-Mexico Extradition Treaty of 1899, requested extradition of two United States citizens, Gaspar Eugenio Jimenez Escobedo and Gustavo Castillo (petitioners), for prosecution on charges of murder, attempted murder, and attempted kidnapping. In response to this request, petitioners were arrested in the Southern District of Florida. After holding an evidentiary hearing under 18 U.S.C. § 3184, a United States Magistrate, on May 31, 1978, issued a Certificate of Extraditability and Order of Commitment for both petitioners. The magistrate found, inter alia, that petitioners are the individuals sought by Mexico, that the crimes for which petitioners are sought are extraditable offenses under the Treaty, and that there is probable cause to believe that petitioners committed those crimes in Mexico.
On June 2 and June 21, 1978, Escobedo and Castillo, respectively, filed the instant petitions for writs of habeas corpus, seeking to block their extradition. By orders entered December 26, 1978, the Southern District of Florida denied the petitions. This appeal followed. Petitioners urge that the district court erred in not granting the writ because: (1) the evidence offered at the extradition hearing did not establish probable cause to believe that they committed the crimes charged; (2) the offenses charged by Mexico are political in character; (3) petitioners, as United States nationals, are not subject to extradition; and (4) certain humanitarian considerations bar extradition.
SCOPE OF REVIEW
The scope of habeas corpus review of a magistrate's extradition order is quite narrow. Such review is limited to determining "whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925); Gusikoff v. United States, 620 F.2d 459, 461 (5th Cir. 1980); Brauch v. Raiche, 618 F.2d 843, 847 (1st Cir. 1980); Garcia-Guillern v. United States, 450 F.2d 1189, 1191 (5th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972). The writ is not a means for rehearing the magistrate's findings. Fernandez v. Phillips, 268 U.S. at 312, 45 S.Ct. at 542; Garcia-Guillern v. United States, 450 F.2d at 1191-92.
As stated, petitioners are charged by the Mexican government with murder, attempted murder and attempted kidnapping. These charges arise out of an alleged attempt by petitioners, along with Orestes Ruiz Hernandez to kidnap the Cuban Consul in Merida, Mexico, Daniel Ferrer Fernandez, on July 23, 1976. During the attempt, an associate of the Consul, Artagnan Diaz y Diaz, was shot and killed. Although bullets were allegedly fired at the Consul, he escaped without injury. Escobedo was arrested at the Mexico City airport the day after the incident. He subsequently escaped from a Mexican jail and fled to the United States. Castillo was never apprehended by Mexican authorities.
In reviewing the existence of probable cause to sustain the charges against petitioners "or, in other words, the existence of a reasonable ground to believe the accused guilty," our function "is to determine whether there is any competent evidence tending to show probable cause. The weight and sufficiency of that evidence is for the determination of the committing court." Garcia-Guillern v. United States, 450 F.2d at 1192; Gusikoff v. United States, supra, 620 F.2d at 462. In this case, the evidence introduced at the extradition hearing to prove probable cause consisted of various documents submitted by Mexico in support of its extradition request.
With respect to Escobedo, the documents show that explosives and firearms were found in his luggage at the time of his arrest. A ballistics report contained in the Extradition Documents concludes that the bullet that killed Diaz y Diaz was fired from one of these firearms. With respect to Castillo, the documents contain a third party's report of a deposition given by the Cuban Consul, Fernandez, to a Mexican official on July 24, 1976. The report states that during the deposition, the Consul was shown a picture of Castillo, and that he "recognized him as one of the persons who performed the attack." At this deposition, and in a statement given to authorities on the day of the attack, the Consul is also reported as saying that one of the attackers approached him with a gun, that he thought bullets were fired at him during the incident, and that the attackers attempted to kidnap him. Furthermore, the documents indicate that Castillo's passport was found in Escobedo's luggage at the time of Escobedo's arrest. We hold that this evidence establishes probable cause to believe that both petitioners committed the crimes charged.
Petitioners contend, however, that the Mexican Extradition Documents should not have been admitted at their extradition hearing; they argue that these documents would have been inadmissible for the purpose of proving probable cause in a Florida court. This argument is without merit. State law does not control the reception of evidence at extradition hearings. Collins v. Loisel, 259 U.S. 309, 317, 42 S.Ct. 469, 472, 66 L.Ed. 956 (1922); Shapiro v. Ferrandina, 478 F.2d at 901-02; Sayne v. Shipley, 418 F.2d at 685. The admissibility of the Mexican Extradition Documents is governed by 18 U.S.C. § 3190, which provides:
§ 3190. Evidence on hearing
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 so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required.
Since the Mexican Extradition Documents were properly certified by the United States Ambassador to Mexico, they were authenticated, and admissible under section 3190. See, e.g., Shapiro v. Ferrandina, 478 F.2d at 901-02; Jimenez v. Aristeguieta, 311 F.2d 547, 562 (5th Cir. 1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415 (1963).
Petitioners next contend that the English translation of the Mexican Extradition Documents contains various inaccuracies and therefore should not be relied upon in assessing probable cause. We reject this argument. After receiving the testimony of an interpreter who appeared on petitioners' behalf, Supp. Record 129-139, the magistrate found that petitioners had failed to impeach the accuracy of the translation. We agree with this finding. In any event, even if petitioners' interpretation of the Documents were accepted, the Documents still support the presence of probable cause.
Finally, petitioners argue that the evidence used to establish probable cause did not satisfy Article VIII of the Extradition Treaty. Article VIII states:
When . . . the fugitives shall have been merely charged with a crime or offense, (an) . . . authenticated and attested copy of the warrant for his arrest in the country where the crime or offense is charged to have been committed, and of the depositions upon which such warrant may have been issued, must accompany the requisition as aforesaid.
(Emphasis added). Petitioners contend that Article VIII was breached because none of the documents submitted by Mexico constitute "depositions" in the strictly legal sense, namely:
The testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law on the subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court.
Black's Law Dictionary (4th ed. 1968). This argument is unpersuasive. The purpose of Article VIII is to provide the asylum country both with proof of the charges brought by the requesting country and with the evidence supporting those charges. The extradition papers forwarded by Mexico fulfill this dual purpose. They include copies of the warrants for petitioners' arrests as well as documents establishing probable cause to believe that the crimes charged were committed. While these documents may not constitute depositions in the strictly legal sense, we hold that they do satisfy Article VIII. To bar extradition, despite the existence of properly authenticated documents establishing probable cause, because of a narrow and technical definition of the term "deposition" would defeat the intent of the Treaty parties. "It is a familiar rule that the obligations of treaties should be liberally construed so as to give effect to the apparent intention of the parties." Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10, 57 S.Ct. 100, 81 L.Ed. 5 (1936).
POLITICAL OFFENSE EXCEPTION
Article III of the Extradition Treaty bars extradition, "When the crime or offense charged shall be of a purely political character." Petitioners argue that Mexico's charges, on their face, bring this case within Article III. Mexico charges that petitioners attempted to kidnap the Cuban Consul for the purpose of ransoming him for political prisoners being held in Cuba. These charges trigger the political offense exception because, say petitioners, a political offense includes "a common crime . . . committed by an ideologically motivated offender . . . where the common crime is intricately linked to the ideology, motive and intent of the alleged offender." We disagree.
This circuit defines a political offense under extradition treaties as an offense committed in the course of and incidental to a violent political disturbance, such as war, revolution and rebellion. Garcia-Guillern v. United States, 450 F.2d at 1192; Jimenez v. Aristeguieta, 311 F.2d at 560. An offense is not of a political character simply because it was politically motivated. In this case, petitioners do not contend, and the evidence offered at the extradition hearing does not show, that the charges arising out of the alleged attempted kidnapping were committed in the course of and incidental to a violent political disturbance. Therefore, petitioners are not entitled to haven under Article III of the Treaty.
Article IV of the Extradition Treaty, on its face, invests the Executive Branch of each treaty party with discretion to surrender its own nationals. It states:
Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this convention, but the executive authority of each shall have the power to deliver them up, if, in its discretion, it be deemed proper to do so.
Despite this language, petitioners contend that as United States citizens, they are not subject to extradition to Mexico. Their argument is three-fold.
First, petitioners argue that the discretion given the Executive under Article IV violates due process because no standards are provided to guide the exercise of this discretion. We reject this argument. Contrary to petitioners' suggestion, a United States citizen may not be whisked away to a foreign country for trial by Executive whim. Under 18 U.S.C. § 3186, the Secretary of State may not surrender any person to a foreign government unless the person has been found extraditable by a magistrate at a hearing held under 18 U.S.C. § 3184. Executive discretion arises only if the magistrate determines that there is "evidence sufficient to sustain the charge under the provisions of the proper treaty." Id. These statutory provisions safeguard the fugitive's due process rights. See Peroff v. Hylton, 563 F.2d 1099, 1102-03 (4th Cir. 1977); Sayne v. Shipley, 418 F.2d at 686.
Assuming that the magistrate's decision is in favor of extradition, the Executive's discretionary determination to extradite the fugitive even one who is a United States national is not generally subject to judicial review. The ultimate decision to extradite is a matter within the exclusive prerogative of the Executive in the exercise of its powers to conduct foreign affairs. Sindona v. Grant, supra; Peroff v. Hylton, 563 F.2d at 1102-03; Shapiro v. Secretary of State, 499 F.2d 527, 531 (D.C. Cir. 1974), aff'd. sub nom. Commissioner of Internal Revenue Service v. Shapiro, 424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976); Wacker v. Bisson, 348 F.2d 602, 606 (5th Cir. 1965) ("Review by habeas corpus . . . tests only the legality of the extradition proceedings; the question of the wisdom of extradition remains for the Executive Branch to decide."); M.C. Bassiouni, International Extradition and World Public Order, 29-34 (1974). This principle was applied in Peroff v. Hylton, supra, a case involving the United States-Sweden Extradition Treaty. Article VII of that treaty is substantially identical to Article IV of the treaty with Mexico. The petitioner in Peroff, a United States citizen, characterized the Executive's exercise of discretion to extradite nationals under Article VII as an "administrative determination," and claimed that he was entitled, as a matter of due process, to a hearing before the Secretary of State on the propriety of his extradition. Holding that it would be improper for a court to impose such a hearing requirement, the Fourth Circuit stated:
The need for flexibility in the exercise of Executive discretion is heightened in international extradition proceedings which necessarily implicate the foreign policy interests of the United States. Thus, while Congress has provided that extraditability shall be determined in the first instance by a judge or magistrate, 18 U.S.C. § 3184, the ultimate decision to extradite is 'ordinarily a matter within the exclusive purview of the Executive.'
563 F.2d at 1102. The court concluded that the requirements of procedural due process were satisfied by the hearing provided under 18 U.S.C. § 3184 and by habeas corpus review. Id. at 1102-03.
The same sensitivity to the Executive's role in foreign affairs, which prompted the Peroff court's refusal to prescribe the procedures by which the Executive exercises its discretion over the extradition of nationals, causes us to reject petitioners' argument that this discretion should be confined within specific standards.
Second, contending that a treaty may be modified subsequent to its entry into force by the practice of the parties, petitioners claim that ever since the first extradition treaty between the United States and Mexico was concluded in 1861, both governments have consistently refused to surrender their own nationals. Because of this practice, petitioners urge that we hold that Article IV's grant of Executive discretion to deliver up nationals has been repealed. We decline this invitation. Most of the incidents cited by petitioners as evidence of the United States' and Mexico's practice of not surrendering nationals occurred prior to the Supreme Court's 1936 decision in Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 57 S.Ct. 100, 81 L.Ed. 5. Yet, in Valentine, the court expressly stated that under Article IV, the Secretary of State had discretionary power to surrender United States citizens. Id. at 12-17. Indeed, the Court suggested that one of the very reasons the 1899 Treaty was written was to give the Executive this power; the 1861 Treaty which it replaced had been interpreted as not giving the Executive authority to extradite United States citizens. Id.
Furthermore, the argument that the treaty parties, through their conduct, have expressed an intention to remove the Executive discretion clause from Article IV is substantially undermined by the terms of the recently executed extradition treaty between the United States and Mexico. 17 Int'l. Legal Materials 1068 (1978). Article 9 of the new treaty provides:
1. Neither Contracting Party shall be bound to deliver up its own nationals, but the executive authority of the requested Party shall, if not prevented by the laws of that Party, have the power to deliver them up if, in its discretion, it be deemed proper to do so.
2. If extradition is not granted pursuant to paragraph 1 of this Article, the requested Party shall submit the case to its competent authorities for the purpose of prosecution, provided that Party has jurisdiction over the offense.
While the new treaty does not control this extradition proceeding, see note 1, supra, the fact that it invests the Executive with the same discretion as was given under Article IV of the old treaty is evidence that the parties never intended to eliminate this discretion.
Finally, petitioners argue that under due process and equal protection principles, they should not be subject to extradition because Mexico does not reciprocate by extraditing its nationals. This argument was rejected by the Supreme Court in Charlton v. Kelley, 229 U.S. 447, 469-76, 33 S.Ct. 945, 952-955, 57 L.Ed. 1274 (1913), and more recently by the Fourth Circuit in Peroff v. Hylton, 563 F.2d 1099, 1102 (4th Cir. 1977). We do the same. The question whether the United States should refuse to extradite its citizens because of Mexico's failure to reciprocate is one for the Executive Branch, not the Courts, to decide.
Alleging that he may be tortured or killed if surrendered to Mexico, Escobedo asks that we bar his extradition on humanitarian grounds. However, "the degree of risk to (Escobedo's) life from extradition is an issue that properly falls within the exclusive purview of the executive branch. See Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976), cert. denied, 429 U.S. 1062 (97 S.Ct. 787, 50 L.Ed.2d 778) (1977) . . . ." Sindona v. Grant, supra, 619 F.2d at 174.
The district court's order denying the writ of habeas corpus is