Luna v. O'Keefe, No. 5:2017cv02129 - Document 9 (N.D. Cal. 2018)

Court Description: Order Denying 1 Petition for Writ of Habeas Corpus. Signed by Judge Lucy H. Koh on 2/8/2018. (lhklc2S, COURT STAFF) (Filed on 2/8/2018)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 ISRAEL RAMIREZ LUNA, Petitioner, 13 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. 14 15 Case No. 17-CV-02129-LHK Re: Dkt. No. 1 DONALD O'KEEFE, Respondent. 16 17 18 Petitioner Israel Ramirez Luna (“Petitioner”), a naturalized citizen of the United States 19 who is awaiting extradition to Mexico, filed a petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2241. ECF No. 1 (“Pet.”). In his petition, Petitioner argues that the Magistrate Judge’s 21 decision to certify Petitioner’s extradition was erroneous because (1) Petitioner’s extradition “is 22 time-barred under the applicable treaty”; and (2) “the government failed to satisfy its burden of 23 establishing probable cause to believe that [Petitioner] committed the offense for which extradition 24 is sought.” Id. at 1. The government has filed an opposition to the petition. ECF No. 4 (“Opp.”). 25 Having considered the submissions of the parties, the relevant law, and the record in this case, the 26 Court hereby DENIES the petition. 27 I. 28 BACKGROUND 1 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS A. Factual Background 1 Petitioner became a naturalized United States citizen in 2001, In re Extradition of Luna, 2 3 4 5 6 7 No. 16-xr-90095 NC (N.D. Cal.), ECF No. 1 ¶ 13,1 but he is originally from Salvatierra, Guanajuato, Mexico. See Pet. at 1; XR ECF No. 41-1. Petitioner has lived in Willits, California with his wife for over fifteen years. XR ECF No. 41-1 ¶ 3. However, Petitioner has been charged by Mexican authorities for the aggravated homicide of Omar Garcia (“Omar” or “Omar Garcia”), which allegedly took place in Guanajuato, Mexico on January 4, 2009. Specifically, according to the complaint for Petitioner’s provisional arrest, Petitioner was 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 at a party in Santa Tomas Huatzindeo, a town in Guanajuato, on the night of January 4, 2009. XR ECF No. 1 ¶ 7. At some point that evening, Petitioner and Omar Garcia began fighting one another outside the party venue, and had to be separated. Id. Shortly thereafter, Omar was about to leave the party with Rodolfo Villegas Villafuerte (“Rodolfo”) when Petitioner returned to the parking lot with his brother, Mauricio Ramirez Luna (“Mauricio”). Id. ¶ 8. Petitioner was holding a machete, and Mauricio was brandishing a firearm. Id. Then, while Rodolfo was driving his pickup truck out of the parking lot, Mauricio shot Rodolfo, and Rodolfo’s truck subsequently traveled about twenty or thirty meters before hitting the main gate of the parking lot. Id. Omar approached the now-stopped pickup truck, but then began running back towards the interior of the parking lot. Id. ¶ 9. As Omar attempted to escape, Mauricio shot Omar several times, which caused Omar to fall to the ground face up. Id. The extradition complaint alleges that after this, Petitioner “stabbed Omar Garcia twice in the neck with a machete, killing him.” Id. Two eyewitnesses identified Petitioner as the man who fought with Omar Garcia and later 21 22 23 24 25 26 27 28 struck him with a machete. Id. ¶¶ 9–10. As a result, Petitioner was charged with two counts of “Aggravated Homicide, as defined by Articles 138, 140, and 153 of the Penal Code of the State of Guanajuato,” and a judge of the “Criminal Court in the State of Guanajuato” issued an arrest 1 In re Extradition of Luna, No. 16-xr-90095 NC (N.D. Cal.), is Petitioner’s underlying extradition proceeding. Hereinafter, the Court denotes docket entries and documents from Petitioner’s underlying extradition proceeding with an “XR.” For example, “XR ECF No. 1” refers to In re Extradition of Luna, No. 16-xr-90095 NC (N.D. Cal.), ECF No. 1, which is the first docket entry in Petitioner’s underlying extradition proceeding. 2 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 2 3 warrant for Petitioner on May 8, 2009. Id. ¶ 5; XR Bates Stamp Number (“BSN”) 55–85. B. Procedural History On February 8, 2016, the government filed a complaint for the provisional arrest of 4 Petitioner with a view towards extradition. XR ECF No. 1. Petitioner was arrested and made an 5 initial appearance before a Magistrate Judge on February 12, 2016. XR ECF No. 2. On April 7, 6 2016, the Magistrate Judge granted Petitioner’s request for bail and found that Petitioner had 7 established “special circumstances” for release. XR ECF No. 20. 8 9 On May 10, 2016, the government submitted formal extradition documents on behalf of Mexico and in support of extradition. XR ECF No. 27. Then, on September 29, 2016, Petitioner filed a motion to dismiss the extradition request. XR ECF No. 41. In that motion, Petitioner 11 United States District Court Northern District of California 10 argued that his extradition was time-barred under Article 7 of the Mexico-United States 12 Extradition Treaty of 1978. Id. The government opposed Petitioner’s motion on October 11, 13 2016, XR ECF No. 42, and Petitioner filed a reply on October 19, 2016. XR ECF No. 43. On 14 December 23, 2016, the Magistrate Judge denied Petitioner’s motion to dismiss the extradition 15 request. XR ECF No. 51. 16 Subsequently, on January 30, 2017, Petitioner filed a motion to deny the extradition due to 17 lack of probable cause. XR ECF No. 52. The government filed an opposition on February 13, 18 2017. XR ECF No. 53. Then, on March 17, 2017, the Magistrate Judge denied Petitioner’s 19 motion to deny the extradition and certified Petitioner’s extradition. XR ECF No. 56. 20 On March 22, 2017, Petitioner filed an unopposed motion to stay the certification of his 21 extradition pending the filing of a habeas petition. XR ECF No. 59. The Magistrate Judge 22 granted Petitioner’s unopposed motion to stay on the same day. XR ECF No. 60. Then, on March 23 23, 2017, the government moved for reconsideration of the Magistrate Judge’s April 7, 2016 order 24 granting Petitioner’s release on bail. XR ECF No. 61. Petitioner opposed the government’s 25 motion for reconsideration on March 29, 2017. XR ECF No. 62. On March 30, 2017, the 26 Magistrate Judge denied the government’s motion for reconsideration of bail. XR ECF No. 64. 27 28 On April 11, 2017, Petitioner filed a motion to reopen the evidence and reconsider the 3 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 certification of Petitioner’s extradition. XR ECF No. 65. Petitioner’s motion was based on two 2 death certificates issued for Omar Garcia; Petitioner argued that the Magistrate Judge “could have 3 reached a different decision had [he] been given the opportunity to consider” the death certificates 4 because the certificates indicate that “bullet wounds were the sole cause of” Omar’s death. Id. at 5 1–2. On April 13, 2017, the Magistrate Judge denied the motion. XR ECF No. 67. Petitioner filed the instant petition for writ of habeas corpus on April 17, 2017. See Pet. 6 7 On May 9, 2017, the government filed an opposition to Petitioner’s petition. See Opp. Then, on 8 May 12, 2017, the parties filed a Joint Motion Requesting Reassignment of Case to District Court 9 Judge. ECF No. 6. As a result, on May 16, 2017, this case was assigned to the undersigned judge. ECF No. 8. 11 United States District Court Northern District of California 10 II. LEGAL STANDARD A district court or Magistrate Judge’s “decision to certify a person as extraditable is not 12 13 subject to direct appeal but may be challenged collaterally through habeas corpus review” 14 pursuant to 28 U.S.C. § 2241. Prasoprat v. Benov, 421 F.3d 1009, 1013 (9th Cir. 2005). In an 15 international extradition, the district court’s habeas review of an extradition order is limited to: (1) 16 whether the extradition court had jurisdiction to conduct the proceedings as well as personal 17 jurisdiction over the individual sought; (2) whether the extradition treaty was in force and whether 18 the crime is an extraditable offense under the relevant treaty’s terms; (3) whether there was 19 probable cause that the individual committed the crime; and (4) whether the crime fell within the 20 political offense exception. Id. The extradition court’s conclusions of law are reviewed de novo, 21 while its factual findings are reviewed for clear error. Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 22 2006). Further, because the extradition court’s “probable cause determination serves only the 23 narrow function of indicating those items of submitted evidence on which the decision to certify 24 extradition is based,” the extradition court’s finding “must be upheld if there is any competent 25 evidence in the record to support it.” Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986) 26 (citations and internal quotations omitted). 27 III. 28 DISCUSSION 4 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS As discussed above, Petitioner argues in his petition that the Magistrate Judge’s decision to 1 2 certify Petitioner’s extradition was erroneous because (1) Petitioner’s extradition “is time-barred 3 under the applicable treaty”; and (2) “the government failed to satisfy its burden of establishing 4 probable cause to believe that [Petitioner] committed the offense for which extradition is sought.” 5 Pet. at 1. The Court addresses each of Petitioner’s arguments in turn. 6 A. Time Bar 7 Article 7 of the extradition treaty between the United States and Mexico states that 8 “[e]xtradition shall not be granted when the prosecution or the enforcement of the penalty for the 9 offense for which extradition has been sought has become barred by lapse of time according to the laws of the requesting or requested party.” Extradition Treaty Between the United States of 11 United States District Court Northern District of California 10 America and the United Mexican States, May 4, 1978, 31 U.S.T. 5059, art. 7 (“Treaty Article 7”). 12 In his motion to dismiss the request for his extradition, Petitioner raised two arguments for why 13 his extradition is barred “by lapse of time according to the laws of the . . . requested party,” the 14 United States. Id.; see XR ECF No. 41. First, Petitioner argued that “the applicable United States 15 statute of limitations has run.”2 Id. at 4. Second, Petitioner argued that Article 7 of the extradition 16 treaty incorporates the Speedy Trial Clause of the Sixth Amendment, and the Speedy Trial Clause 17 “bars extradition in this case.” Id. at 8–14. In denying Petitioner’s motion to dismiss the 18 extradition, the Magistrate Judge rejected both of these arguments. XR ECF No. 51. However, in 19 the instant petition, Petitioner raises the same two time bar arguments and asserts that the 20 Magistrate Judge erroneously rejected them. Pet. at 6–14. The Court considers each of 21 Petitioner’s time bar arguments in turn. 22 1. Statute of Limitations 23 The Ninth Circuit has recognized that Article 7 of the extradition treaty between the United 24 States and Mexico “‘preclude[s] extradition of a person whose prosecution in the United States 25 26 27 28 2 In his motion to dismiss the request for his extradition, Petitioner conceded that the 30-year Mexican statute of limitations had not run. XR ECF No. 41 at 4 n.5. Petitioner does not argue otherwise in the instant petition. 5 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 would offend our national statutes of limitations if he had committed his criminal conduct here.’” 2 Sainez v. Venables, 588 F.3d 713, 716 (9th Cir. 2009) (quoting Clarey v. Gregg, 138 F.3d 764, 3 767 (9th Cir. 1998). Further, the Ninth Circuit has stated that “[i]n determining what United 4 States statute of limitations is applicable,” courts must “look[] to the substantive offense under 5 United States law which is most closely analogous to the charged offense, and applies the statute 6 of limitations applicable to that offense.” Id. at 716 (citation omitted). 7 In the instant case, Petitioner states that he has been charged with two counts of 8 “aggravated homicide” “under Article 138 and Article 153(I) of the Guanajuato Criminal Code.” 9 Pet. at 7. The Magistrate Judge found that the federal crime that is most analogous to the offenses charged against Petitioner is second-degree murder, which has a statute of limitations of five 11 United States District Court Northern District of California 10 years. XR ECF No. 51 at 4 (citing 18 U.S.C. §§ 1111(a)–(b), 3282). Petitioner agrees with this 12 finding, Pet. at 7, but argues that his five-year statute of limitations has already run because no 13 indictment or information was ever issued against Petitioner, and Mexico did not request 14 Petitioner’s extradition within the five-year limitations period. Id. at 8–9. For its part, the 15 government argues that “regardless of whether the five-year period or a longer period applies” in 16 the instant case, the issuance of an arrest warrant for Petitioner by a Mexican court on May 8, 17 2009—less than five months after the alleged offense occurred on January 4, 2009—“tolled the 18 U.S. statute of limitations for purposes of Article 7.” Opp. at 4. 19 Under binding Ninth Circuit law, the government is correct. The Ninth Circuit held in 20 Sainez that “for the purpose of a civil proceeding such as an extradition, a Mexican arrest warrant 21 is the equivalent of a United States indictment and may toll the United States statute of 22 limitations.” 588 F.3d at 717. Thus, even assuming Petitioner is correct that the applicable 23 limitations period is five years, the issuance of a Mexican arrest warrant less than five months 24 after Petitioner’s alleged offense tolled the statute of limitations. As a result, Petitioner’s 25 extradition is not “preclude[d]” by any statute of limitations under United States law. Clarey, 138 26 F.3d at 767. 27 28 Petitioner acknowledges that this Court is bound by Sainez’s holding that a Mexican arrest 6 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 warrant “may toll [a] United States statute of limitations” for purposes of an extradition, 588 F.3d 2 at 717, but “respectfully submits that Sainez was wrongly decided.” Pet. at 8. This Court must 3 apply Sainez’s holding unless and until it is overturned or abrogated by the Ninth Circuit or the 4 United States Supreme Court. Thus, Petitioner’s statute of limitations argument is unavailing, and 5 the Magistrate Judge did not err by rejecting it. 6 2. Speedy Trial Clause 7 Petitioner’s second time bar argument is that his extradition is barred “by lapse of time according to the laws of the” United States, Treaty Article 7, because the United States would bar 9 the prosecution of Petitioner on the ground that his Sixth Amendment right to a speedy trial would 10 have been violated. Petitioner’s second time bar argument proceeds in two parts. First, Petitioner 11 United States District Court Northern District of California 8 asserts that the “lapse of time” provision in Article 7 of the Mexico-United States extradition 12 treaty incorporates the Sixth Amendment. Pet. at 9–11. Second, Petitioner argues that the Speedy 13 Trial Clause of the Sixth Amendment would bar the prosecution of Petitioner in the instant case. 14 Id. at 11–14. 15 In response, the government argues that, as numerous courts in this district and within the 16 Ninth Circuit have held, the “lapse of time” provision in the extradition treaty between Mexico 17 and the United States does not incorporate the Sixth Amendment’s Speedy Trial Clause. Opp. at 18 7–8. Further, the government argues that “the extent, if any, to which a delay in filing an 19 extradition request should factor into an extradition decision is a determination that should be left 20 to the Secretary of State.” Id. at 8. 21 The Court agrees with the government’s argument that the “lapse of time” provision does 22 not incorporate the Sixth Amendment’s Speedy Trial Clause. Although Petitioner is correct that 23 “[t]he Ninth Circuit has not addressed the question whether [the ‘lapse of time’ provision] 24 incorporates the Sixth Amendment,” Pet. at 10, several courts in this district, including this Court, 25 have ruled against such incorporation. See United States v. Cruz Garfias, 2009 WL 2580641, *3 26 (N.D. Cal. Aug. 20, 2009); In re Gonzalez, 2011 WL 5190047, *2 (N.D. Cal. Oct. 31, 2011); 27 Gonzalez v. O’Keefe, 2014 WL 6065880 (N.D. Cal. Nov. 20, 2014); United States v. Matter of 28 7 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 Extradition of Gonzalez, 2015 WL 1409327 (N.D. Cal. Mar. 27, 2015). As the Magistrate Judge 2 observed in his order denying Petitioner’s motion to dismiss the government’s extradition request, 3 “[m]ost of these opinions cite Causbie Gullers v. Bejarano, 293 F. App’x 488, 489 (9th Cir. 4 2008), an unpublished Ninth Circuit opinion, which discussed the treaty’s ‘lapse of time’ 5 provision as only implicating statutes of limitations.” XR ECF No. 51 at 5; see also Clarey, 138 6 F.3d at 766 (“The object of Article 7 of the Treaty is to preclude extradition of a person whose 7 prosecution in the United States would offend our national statute of limitations if he had 8 committed his criminal conduct here.”). Moreover, other courts within the Ninth Circuit have also 9 found that Article 7’s “lapse of time” provision does not incorporate the Sixth Amendment. See In re Silva-Peralta, 2016 WL 4987483, *10 (S.D. Cal. Sep. 19, 2016); In re Flores Ortiz, 2011 WL 11 United States District Court Northern District of California 10 3441618, *5 (S.D. Cal. Feb. 9, 2011); In re Extradition of Salazar, 2010 WL 2925444, *6–7 (S.D. 12 Cal. July 23, 2010). 13 Further, even though no Ninth Circuit case squarely addresses the issue of whether the 14 “lapse of time” provision in the Mexico-United States extradition treaty incorporates the Sixth 15 Amendment, the Court finds the reasoning against such incorporation in both Kamrin v. United 16 States, 725 F.2d 1225 (9th Cir. 1984), and In re Extradition of Kraiselburd, 786 F.2d 1395 (9th 17 Cir. 1986), persuasive. In Kamrin, one of the treaty provisions at issue was Article X of the 18 extradition treaty between Australia and the United States, which provided that “the person whose 19 extradition is sought shall have the right to use such remedies and recourses as are provided by the 20 law of the requested state.” 725 F.2d at 1227 (alteration adopted). Despite the text of this 21 “remedies and recourses” provision, the Ninth Circuit rejected the petitioner’s argument that the 22 provision “entitle[d] him to the due process right that underlies United States statutes of 23 limitations: the right to a trial in which his defense is unimpaired by the passage of time.” Id. at 24 1228. In holding that the “remedies and recourses” provision in the Australia-United States 25 extradition treaty did not incorporate due process protections that are afforded to defendants in 26 American criminal proceedings, the Ninth Circuit relied on the long-settled rule “that United 27 States due process rights cannot be extended extraterritorially.” Id. Subsequently, in Kraiselburd, 28 8 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 the Ninth Circuit addressed a virtually identical “remedies and recourses” provision in the 2 extradition treaty between Argentina and the United States, which granted fugitives “the right to 3 use such remedies and recourses as are provided by the law of the requested Party.” 786 F.2d at 4 1398. Relying in part on Kamrin, the Ninth Circuit rejected the petitioner’s argument that the 5 “remedies and recourses” provision in the Argentina-United States extradition treaty “imposes 6 upon Argentina the duty to comply with the speedy trial and due process clauses of the United 7 States Constitution.” Id. Thus, contrary to Petitioner’s argument that Kamrin and Kraiselburd 8 provide “little guidance” to the resolution of the instant issue, Pet. at 11, the Court finds that the 9 reasoning and conclusions in both Kamrin and Kraiselburd appear to be applicable here because both cases considered whether a treaty provision incorporated constitutional protections— 11 United States District Court Northern District of California 10 including the Speedy Trial Clause—by allowing for the use of “such remedies and recourses as are 12 provided by the law of the” United States. 13 Published decisions from other federal courts of appeal also support the Court’s conclusion 14 that the “lapse of time” provision in the Mexico-United States extradition treaty does not 15 incorporate the Sixth Amendment. The Sixth Circuit, sitting en banc, recently came to the same 16 conclusion about the same “lapse of time” provision in Martinez v. United States, 828 F.3d 451 17 (6th Cir. 2016). To reach its holding that Article 7’s “lapse of time” provision does not 18 incorporate the right to a speedy trial, the Sixth Circuit looked to, inter alia, the text of the 19 provision and the history of extradition treaties. See id. at 457–62. As to the text of the provision, 20 the Sixth Circuit observed that the speedy trial right is a “‘relative,’” “‘amorphous,’” and 21 ‘“slippery’” one that “does not create a fixed time bar on trial initiation” but instead ‘“depends on 22 circumstances.’” Id. at 457–58 (quoting Barker v. Wingo, 407 U.S. 514, 521–22 (1972)). Thus, 23 “[l]apse of time, standing alone, does not—cannot—violate the Speedy Trial Clause in the 24 absence of at least some . . . other factors.” Id. at 458. The Sixth Circuit therefore concluded that 25 “[b]ecause the Sixth Amendment does not establish a time limit, fixed or otherwise, before a trial 26 must start, it does not create a rule that ‘bar[s]’ criminal prosecutions due to ‘lapse of time’” 27 within the meaning of Article 7 of the Mexico-United States extradition treaty. Id. at 457–58. 28 9 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 Further, as to history, the Sixth Circuit relied upon “over a century of law equating ‘lapse of time’ 2 [in other extradition treaties] with statutes of limitations,” and not the Sixth Amendment. Id. at 3 462. Similarly, the Eleventh Circuit held in Yapp v. Reno, 26 F.3d 1562 (11th Cir. 1994), that 5 the “lapse of time” provision in an extradition treaty between the United States and the Bahamas 6 referred only to statutes of limitations and did not incorporate the Sixth Amendment right to a 7 speedy trial. Id. at 1567. To reach this conclusion, the Eleventh Circuit relied upon “the fact that 8 for over a century, the term ‘lapse of time’ has been commonly associated with a statute of 9 limitations violation.” Id. Further, after noting that interpreting the treaty provision to incorporate 10 the speedy trial right “would require a district judge or Magistrate Judge, generally unfamiliar with 11 United States District Court Northern District of California 4 foreign judicial systems and the problems and circumstances facing them, to assess the 12 reasonableness of a foreign government’s action in an informational vacuum,” the Eleventh 13 Circuit expressed doubt that “the parties who negotiated” the treaty “would have intended” this 14 consequence “without stating their intention to do so more explicitly.” Id. at 1568. 15 The only opinions that Petitioner cites to support his position are the dissenting opinions 16 from Martinez and Yapp. Pet. at 10–11. However, the Court adopts the interpretation of the 17 “lapse of time” provision that is supported by the substantial weight of authority, as described 18 above. As a result, the Court concludes that the “lapse of time” provision in Article 7 of the 19 Mexico-United States extradition treaty does not incorporate the Speedy Trial Clause of the Sixth 20 Amendment. Therefore, the Magistrate Judge correctly found that Petitioner’s extradition was not 21 barred by the Speedy Trial Clause. 22 23 B. Probable Cause In order to certify an extradition, an extradition court must find that there is probable cause 24 to believe that the accused committed the charged offense. This means that an extradition court 25 may certify an extradition only if there is “‘evidence sufficient to cause a person of ordinary 26 prudence and caution to conscientiously entertain a reasonable belief in the accused’s guilt.’” In 27 re Flores Ortiz, 2011 WL 3441618, *7 (S.D. Cal. Feb. 9, 2011) (quoting United States v. Wiebe, 28 10 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 733 F.2d 549, 553 (8th Cir. 1984)). Thus, the function of an extradition court is “to determine 2 whether there is competent evidence to justify holding the accused to await trial, and not to 3 determine whether the evidence is sufficient to justify a conviction.” Collins v. Loisel, 259 U.S. 4 309, 316 (1922) (internal citations and quotations omitted). The ultimate determination of guilt or 5 innocence “remains to be determined in the courts of the demanding country.” Sainez, 588 F.3d at 6 717. 7 When reviewing the extradition court’s probable cause determination, the Court does not weigh the evidence presented to the extradition court—even when there are inconsistencies within 9 the evidence. Sainez, 588 F.3d at 718 (“Crotte invites us to weigh the witness’ statements, arguing 10 that their inconsistencies preclude a finding of probable cause. However, weighing the evidence is 11 United States District Court Northern District of California 8 not a function we perform when we review the magistrate’s probable cause determination.”). 12 Instead, on habeas review of an extradition order, this Court must uphold the extradition court’s 13 probable cause determination “if there is any competent evidence in the record to support it.” 14 Quinn, 783 F.2d at 791 (emphasis added). 15 As discussed above, during his extradition proceedings in front of the Magistrate Judge, 16 Petitioner filed a motion to deny the extradition due to lack of probable cause. XR ECF No. 52. 17 In that motion, Petitioner conceded that there “is probable cause to believe that [Petitioner] cut 18 Omar Garcia’s neck with a machete on the night Mr. Garcia was killed.” Id. at 1. However, 19 Petitioner argued that the government had “failed to establish probable cause to believe that this 20 injury is what caused [Omar] Garcia’s death” because (1) Petitioner “is not alleged to have cut Mr. 21 Garcia until after [Petitioner’s] brother had shot [Omar] Garcia six times at close range,” which 22 “penetrated Mr. Garcia’s thorax and abdomen”; and therefore (2) “it appears probable that Omar 23 Garcia was already dead when [Petitioner] cut him.” Id. Despite Petitioner’s arguments, the 24 Magistrate Judge found that there is “probable cause to believe that [Petitioner] committed the 25 offense of aggravated homicide.” XR ECF No. 56 at 14. 26 27 28 In the instant habeas petition, Petitioner once again appears to concede that there is probable cause to believe that Petitioner cut Omar’s neck with a machete by stating that “[t]he 11 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 only issue is whether [Omar] Garcia was already dead when [Petitioner] allegedly cut him with a 2 machete.” Pet. at 17. Nonetheless, Petitioner asserts that the Magistrate Judge erred in finding 3 that there is probable cause to believe that Petitioner killed Omar. Petitioner’s argument proceeds 4 in two parts. First, Petitioner argues that the Magistrate Judge erred by excluding some of 5 Petitioner’s proffered evidence, specifically: (1) an expert report by Dr. Katherine Raven, a 6 forensic pathologist; and (2) “the death certificates issued by the Guanajuato Department of the 7 Civil Registry and Department of Health.” Pet. at 16–20. Second, Petitioner argues that after 8 taking into account the excluded pieces of evidence, the totality of the evidence “fails to establish 9 probable cause” to believe that Petitioner killed Omar. Id. at 20–24. 10 For the reasons stated below, the Court concludes that the Magistrate Judge did not err in United States District Court Northern District of California 11 finding that there is probable cause to believe that Petitioner committed aggravated homicide. 12 First, the Court explains the applicable legal standard for admissibility of evidence offered by the 13 accused in an extradition proceeding. Second, the Court details the Magistrate Judge’s probable 14 cause determination and the underlying admissibility rulings. Third and finally, the Court 15 addresses Petitioner’s two-part argument. 16 1. Legal Standard for Admissibility of Evidence Offered by the Accused 17 “Given the limited nature of extradition proceedings, neither the Federal Rules of Evidence 18 nor the Federal Rules of Criminal Procedure apply.” Santos v. Thomas, 830 F.3d 987, 992 (9th 19 Cir. 2016). Instead, under 18 U.S.C. § 3190, evidence is admissible so long as it is authenticated 20 and would “be received for similar purposes by the tribunals of the foreign country from which the 21 accused party shall have escaped.” However, it is well-established that “the accused . . . does not 22 have the right to introduce evidence in defense because that would require the government seeking 23 his extradition ‘to go into a full trial on the merits in a foreign country.’” Santos, 830 F.3d at 992 24 (quoting Collins, 259 U.S. at 316). Thus, evidence that “merely controverts the existence of 25 probable cause,” Mainero v. Gregg, 164 F.3d 1199, 1207 n.7 (9th Cir. 1999), or “contradict[s] the 26 testimony for the prosecution,” Collins, 259 U.S. at 316 (quoting Charlton v. Kelly, 229 U.S. 447, 27 461 (1913), is inadmissible. See also Barapind v. Enamoto, 400 F.3d 744, 750 (9th Cir. 2005) 28 12 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 (stating that “extradition courts ‘do not weigh conflicting evidence’ in making their probable cause 2 determinations”) (alteration adopted) (quoting Quinn, 783 F.2d at 815). On the other hand, 3 “evidence that ‘explains matters referred to by the witnesses for the government’” is admissible. 4 Santos, 830 F.3d at 992 (quoting Charlton, 229 U.S. at 461). 5 The Ninth Circuit has observed that “[t]he federal courts have struggled to distinguish 6 between” “explanatory” evidence (which is admissible) and “contradictory” evidence (which is 7 not). Santos, 830 F.3d at 992. However, the Ninth Circuit has “described ‘contradictory’ 8 evidence as evidence ‘the credibility of which could not be assessed without a trial.”’ Id. at 993 9 (quoting Barapind, 400 F.3d at 749–50); see also Eain v. Wilkes, 641 F.2d 504, 511 (7th Cir. 1981) (“An accused in an extradition hearing has no right to contradict the demanding country’s 11 United States District Court Northern District of California 10 proof or to pose questions of credibility as in an ordinary trial, but only to offer evidence which 12 explains or clarifies that proof.”). “In practice, this means that an individual contesting extradition 13 may not, for example, present alibi evidence, facts contradicting the government’s proof, or 14 evidence of defenses like insanity, as this tends to call into question the credibility of the 15 government’s offer of proof.” Santos, 830 F.3d at 993. Nor can the accused “impeach 16 government witnesses or produce witnesses whose testimony contradicts evidence already offered 17 by the government.” Id. However, “the accused may testify ‘to things which might have 18 explained ambiguities or doubtful elements’ in the government’s case.” Id. (quoting Collins, 259 19 U.S. at 315–16). 20 21 2. The Magistrate Judge’s Probable Cause Determination and Admissibility Rulings a. Evidentiary Basis of Probable Cause Determination 22 As discussed above, the Magistrate Judge rejected Petitioner’s challenge to probable cause, 23 which was premised on the argument that “it appears probable that Omar Garcia was already dead 24 when [Petitioner] cut him.” XR ECF No. 52 at 1. The Magistrate Judge based his probable cause 25 finding on statements from four witnesses and Omar Garcia’s’s autopsy report. XR ECF No. 56 at 26 8–10. The first witness, Pablo Murillo Ramirez (“Pablo”), gave one witness statement on January 27 5, 2009, the day after Petitioner allegedly committed aggravated homicide, and another witness 28 13 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS statement on October 8, 2012. In his 2009 statement, Pablo recounts that shortly after Petitioner 2 and Omar fought in the parking lot of the party venue and were separated, Pablo heard gunshots, 3 noticed a black Ford pickup truck, and saw Petitioner’s brother, Mauricio, walk alongside the 4 truck with a black pistol. XR ECF No. 52-3 at MX000032. Pablo further states that he saw Omar 5 go into the parking lot and “fall sideways to the ground,” and that immediately afterwards, Pablo 6 saw Mauricio fire shots toward the ground “in the direction where Omar was lying.” Id. at 7 MX000033. Next, Pablo saw the black truck drive by “approximately 20 meters” away, and then 8 observed Mauricio “holding the gun, and [Petitioner] with a machete in his right hand; both of 9 them were walking out of the parking lot where Omar was lying.” Id. In his 2012 statement, 10 Pablo states that immediately after seeing Omar fall in the parking, he saw Mauricio approach 11 United States District Court Northern District of California 1 Omar and fire “several times at [Omar] on the neck.” XR BSN 188. Subsequently, Pablo saw 12 Petitioner approach Omar “carrying a big machete” and then “stab[] Omar with it several times, 13 being one in the head and another one in the neck forming a cross.” Id. 14 The second witness, Luis Angel Garcia Sanchez (“Luis”), also gave two witness 15 statements—one on January 5, 2009 and another on October 8, 2012. In his 2009 statement, Luis 16 recounts that after exiting the party venue to observe the fight between Petitioner and Omar, and 17 after the two fighters were separated, Luis saw Petitioner “with a machete in his right hand” 18 outside of Petitioner’s house, which was nearby. XR ECF No. 52-2 at MX000050. Luis states 19 that he then saw Mauricio walk out of Petitioner’s house with a gun in his right hand towards the 20 party venue. Id. at MX00051. Next, just as a man named Rodolfo Villegas Villafuerte 21 (“Rodolfo”) was “exiting the parking lot in a black Ford truck” and “going to start driving 22 forward,” Mauricio “walked up to the left side door of the truck and fired 3 to 4 shots in Rodolfo’s 23 direction,” which caused the truck to continue “moving on its own 20 or 30 meters toward the 24 other entrance to the parking lot, scraping its right side as it went until it stopped in front of a 25 white gate through which one can also access said parking lot.” Id. Luis says that he then 26 “noticed Omar standing by that gate” while Mauricio approached Omar with a gun, and explains 27 that “upon seeing [Mauricio] approaching,” Omar ran first toward the truck and then into the 28 14 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 parking lot, but “fell to the ground after managing to run a distance of barely 1 meter.” Id. Luis 2 further states that he saw Mauricio fire his gun at Omar from behind five times, that Omar fell 3 down and somehow “ended up positioned face up,” and that Mauricio subsequently fired 3 more 4 shots at Omar’s chest “with Omar already lying on the ground, screaming to [Mauricio], ‘Drop the 5 piece, mother fucker.’” Id. Then, Luis saw Petitioner come up to Omar with the machete and hit 6 Omar “somewhere around the right side of the neck, while Omar was lying on the ground.” Id. 7 Finally, Luis affirms that “Omar was still alive when [Petitioner] hit him with the machete” 8 because Luis “could see [Omar] was groaning, and [Omar] began bleeding profusely,” and he also 9 notes that he observed all of this happen from “about 7 meters away” with the help of “plenty of 10 United States District Court Northern District of California 11 light from several lampposts.” Id. In his 2012 statement, Luis states that he was already outside when he saw Petitioner and 12 Omar begin fighting and later be broken up. XR BSN 183. Luis also says that he spoke with 13 Omar shortly after the fight and urged Omar to leave the party with Rodolfo, and that soon 14 thereafter, he observed “a lot of persons on the street running and yelling” and heard people saying 15 ‘here they come! And they have something.’” Id. Then, Luis recounts that he saw Mauricio shoot 16 Omar and Petitioner strike Omar in the neck with a machete. Id. Luis further states that after 17 Mauricio and Petitioner walked away from the scene, Luis approached Omar and “could see that 18 he was dying, since he was really fucked up.” Id. 19 The third witness, Miguel Angel Yerena Vera (“Miguel”), provided one witness statement 20 on January 5, 2009. In that statement, Miguel states that he saw Petitioner and Omar fighting 21 from inside the party venue, and that shortly thereafter, he observed a “black pickup truck” driven 22 by Rodolfo that “was exiting the parking lot in reverse.” XR ECF No. 52-9 at MX000035. 23 Miguel then saw Mauricio approach the truck from the driver’s side holding a gun, reach in 24 through the truck’s left window, and shoot Rodolfo “almost point-blank.” Id. at MX000036. 25 While the truck continued to move “for another 20 meters” before stopping, Miguel noticed Omar 26 running into the parking lot and then heard “3 to 5 more shots.” Id. Miguel further recounts that 27 shortly after hearing the gun shots, he saw Mauricio and Petitioner running out of the parking lot, 28 15 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 with Petitioner holding a machete. Id. Miguel then walked to the truck to see Rodolfo and 2 thought that Rodolfo was “already dead because he wasn’t moving, and had lots of blood around 3 the chest and neck area.” Id. Next, Miguel recalls that he “went to the parking lot to check what 4 had happened to Omar,” “saw [Omar] lying face up,” and saw that Omar “was still alive, but had a 5 big wound in his neck, and was bleeding a lot.” Id. Then, “[u]pon noticing [Omar] was still 6 alive,” Miguel and some other bystanders “proceeded to pick [Omar] up and move him closer to 7 the pickup” in order “to take him in the truck to seek medical attention.” Id. 8 The fourth witness, Victor Alfonso Hernandez Ramirez (“Victor”), provided a witness statement on March 10, 2009. Victor’s statement indicates that Victor did not see the initial fight 10 between Omar and Petitioner, but that he did see Mauricio shoot both Rodolfo (while Rodolfo was 11 United States District Court Northern District of California 9 driving a black truck) and Omar. XR ECF No. 52-5 at MX000204–05. In his statement, Victor 12 recounts that after Mauricio shot Omar several items in the back and chest, Victor saw Petitioner 13 “walk[] up holding a machete in his right hand” to Omar. Id. at MX00205. Then, Victor says that 14 “while Omar lay on the ground, still alive because he was groaning a lot, [Petitioner] hit him with 15 [the machete] somewhere along the right side of the neck.” Id. Also in his statement, Victor notes 16 that he “saw all this from a distance of about 4 meters” while he “was standing at the entrance to 17 the parking lot,” and that he “could see everything well because there are a lot of lamps inside and 18 outside the parking lot.” Id. 19 As to the autopsy results, Omar Garcia’s autopsy was completed on January 5, 2009 by 20 Diana Cuevas Saldana and Ubaldo De Jesus Aguilar Aguilera. XR BSN 111. The autopsy report 21 identified eight firearm wounds, one wound “with characteristics of those produced by a sharp 22 weapon, lineal form, found in chin and right parotid-mastoidal areas,” and wounds to Omar 23 Garcia’s hands caused by a knife. XR BSN 113–14. The autopsy classified as lethal “EITHER 24 SEPARATELY OR IN CONJUNCTION” (1) injuries caused by a sharp weapon penetrating 25 Omar Garcia’s neck; and (2) injuries caused by firearm projectiles penetrating his thorax and 26 abdomen. XR BSN 117. Finally, the autopsy report found that Omar Garcia’s “immediate” cause 27 of death was: “WOUND PRODUCED BY SHARP-EDGED INSTRUMENT AND WOUNDS 28 16 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 OF PROJECTILES FIRED FROM A GUN WHICH PENETRATED THORAX AND 2 ABDOMEN AND DOUBLE PENETRATION IN THORAX AND ABDOMEN.” XR BSN 118 3 (caps in original). 4 The Magistrate Judge found that this evidence was sufficient to support probable cause to 5 believe that Omar Garcia was still alive when Petitioner struck him in the neck with a machete, 6 and thus that Petitioner’s machete strike was a cause of Omar’s death. Although Petitioner argued 7 that the 2012 witness statements from Luis and Pablo were unreliable because those statements 8 were inconsistent with their 2009 statements, XR ECF No. 52 at 10–12, the Magistrate Judge 9 concluded that “[t]hough there are some inconsistencies in the testimonies of Pablo Murillo Ramirez and Luis Angel Garcia Sanchez, those inconsistencies are not so great, and they do not 11 United States District Court Northern District of California 10 bear on the key contested facts: that [Petitioner] struck Omar with the machete, and that Omar was 12 still alive when this happened.” XR ECF No. 56 at 9. Further, the Magistrate Judge pointed out 13 that “[e]ven if the Court were to accept the challenges to Pablo and Luis’ testimonies, which it 14 does not, that still leaves the eyewitness testimony of Miguel [] and Victor [] unchallenged.” Id. 15 Because Victor saw that Omar Garcia was still alive when Petitioner struck Omar with the 16 machete, and because Miguel saw that Omar was still alive after being shot and struck with the 17 machete, the Magistrate Judge concluded that “[t]hese two eyewitness statements” from Miguel 18 and Victor “would support a probable cause finding in this case” on their own. Id. at 9–10. 19 20 b. Admissibility Rulings Petitioner offered an expert report by Dr. Katherine Raven, a forensic pathologist, in 21 support of his motion to deny extradition for lack of probable cause. XR ECF No. 52 at 11–12; 22 XR ECF No. 52-7 (“Raven Report”). To construct her report, Dr. Raven relied on the exhibits 23 submitted in support of the extradition, and did not personally examine Omar Garcia’s body. 24 Raven Report at 1. In her report, Dr. Raven states that she could not determine “[f]rom the 25 autopsy alone” whether Petitioner’s machete strike to Omar Garcia’s neck “truly contributed to 26 Mr. Garcia’s death.” Id. at 2. Dr. Raven further notes that “[i]ncluding all significant injuries in a 27 cause of death [autopsy report] is not an uncommon practice in cases where there are multiple 28 17 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 modalities of injury,” and reasoned that although independent fatal wounds “are grouped together 2 collectively for purposes of a cause of death statement,” “it should not be inferred from such a 3 statement which injury was specifically fatal.” Id. Dr. Raven’s report then provides reasons why 4 the machete wounds were not the cause of Omar Garcia’s death. Specifically, Dr. Raven states 5 that if Omar had “been alive when he sustained the machete wound to the neck,” there likely 6 would have been “significant blood at the scene, and likely an arterial spurting pattern from the 7 injury to the right carotid artery,” such that witnesses would likely have “described vigorous blood 8 loss and even spurting from the neck.” Id. However, Dr. Raven notes that none of the 9 photographs or witness statements documented any “arterial spurting,” and that the autopsy “did not report any soft tissue hemorrhages in the neck associated with the sharp force injury which 11 United States District Court Northern District of California 10 would certainly have been expected had Mr. Garcia been alive at the time the [machete] injury 12 was sustained.” Id. Beyond that, Dr. Raven’s report states that some of the “movement,” 13 “twitching,” and “noises and deep sounds coming from the back of the throat” that witnesses 14 might have observed from Omar Garcia’s body before Petitioner struck Omar “can occur for 15 various reasons in the early postmortem period and should not be considered proof of life.” Id. 16 Thus, Dr. Raven concludes in her report that “the cause of [Omar Garcia’s] death can 17 appropriately [be] certified as a consequence of multiple gunshot wounds.” Id. 18 However, the Magistrate Judge ruled that Dr. Raven’s report was inadmissible in 19 Petitioner’s extradition proceedings. In excluding Dr. Raven’s report, the Magistrate Judge 20 highlighted the fact that “the Mexican autopsy for Omar Garcia stated that his immediate cause of 21 death was both the machete and gun wounds.” XR ECF No. 56 at 11. The Magistrate Judge then 22 explained that under the legal standard governing admissibility of evidence in extradition 23 proceedings, Petitioner could not present evidence contradicting the Mexican autopsy’s findings 24 on Omar Garcia’s cause of death. Id. (citing Mainero, 164 F.3d at 1207 n.7). Further, the 25 Magistrate Judge found that because Dr. Raven stated in her report that she “was asked to 26 specifically review the autopsy protocol and photographs pertaining to Mr. Omar Garcia to see if 27 Mr. Garcia was still alive at the time the machete wound was inflicted,” id. (quoting Raven Report 28 18 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 at 2), “the reason [Dr. Raven] was retained as an expert” was not “merely . . . to explain away 2 some of the government’s evidence,” but rather “to negate the specific finding of” Omar’s cause 3 of death, according to the autopsy report. Id. In sum, because Dr. Raven’s report contradicted the 4 cause of death finding in Omar Garcia’s autopsy, the Magistrate Judge found that the report was 5 inadmissible. Id. 6 The Magistrate Judge then concluded that “[e]ven if the Raven Report were considered in these extradition proceedings, it would not negate probable cause.” Id. Specifically, the 8 Magistrate Judge pointed out that while Dr. Raven’s report concludes that Omar Garcia’s cause of 9 death “can be appropriately certified” as being caused by the gunshots, it also states that Dr. Raven 10 “cannot determine if the sharp force injury truly contributed to” Omar’s death. Id.; Raven Report 11 United States District Court Northern District of California 7 at 2. The Magistrate Judge emphasized that there is “no certainty to these findings.” XR ECF No. 12 56 at 11. Beyond that, the Magistrate Judge also highlighted Dr. Raven’s observations that 13 “‘[p]hotographs of the scene and autopsy were of poor quality and minimal’” and that no “‘close- 14 up photographs of blood depositions at the scene were provided.’” Id. (quoting Raven Report at 15 2). The Magistrate Judge stated that the lack of certainty in Dr. Raven’s findings, combined with 16 the acknowledged deficiencies in the photographic evidence upon which Dr. Raven relied, 17 “undermine[d] [Dr. Raven’s] conclusion that the gunshot wounds, and not the machete wounds, or 18 a combination thereof, caused Omar’s death.” Id. at 12. Finally, and more generally, the 19 Magistrate Judge explained that “evidence presented to the court in support of extradition may be 20 contradictory,” id. (citing Sainez, 588 F.3d at 718), so long as “there is enough evidence to 21 ‘conscientiously entertain’ the reasonable belief that [Petitioner] committed the crime.” Id. 22 (quoting In re Flores Ortiz, 2011 WL 3441618, at *7). In light of this standard, the Magistrate 23 Judge concluded that, even considering Dr. Raven’s report, “the combination of the witness 24 statements and the autopsy, which was performed on the body the day after Omar’s death, support 25 a finding of probable cause that [Petitioner] committed the murder of Omar Garcia.” Id. 26 Shortly after the Magistrate Judge found probable cause and certified Petitioner’s 27 28 extradition, Petitioner filed a motion to reopen the evidence and reconsider the certification of 19 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 extradition. XR ECF No. 65. In that motion, Petitioner asked the Magistrate Judge to consider 2 two additional documents: (1) a certified death certificate for Omar Garcia issued by the 3 Guanajuato Department of the Civil Registry; and (2) “a form entitled Department of Health Death 4 Certificate with regard to the death of Omar Garcia.” Id. at 2–4. The former document states that 5 Omar Garcia’s death was caused by “wounds produced by projectiles discharged from a firearm, 6 penetrating wound to face and neck, abdomen, and thorax-abdomen double-penetrating wound.” 7 XR ECF No. 66-1 at 4. The latter document states that Omar’s “death resulted from the impact of 8 a projectile discharged from a firearm” and, in another section, identifies Omar’s “cause/s of 9 death” as “[w]ounds produced by a projectile” that was “[d[ischarged by a firearm penetrating” “[of] face [] abdomen and” “thoracic-abdominal.” XR ECF No. 66-2 at 3. Petitioner asserted that 11 United States District Court Northern District of California 10 these documents indicate “that the bullet wounds were the sole cause” of Omar Garcia’s death, 12 and argued that the documents should be admitted into evidence because they amounted to 13 “‘evidence that explains away or completely obliterates probable cause.’” XR ECF No. 65 at 2 14 (quoting Mainero, 164 F.3d at 1207 n.7). 15 The Magistrate Judge disagreed with Petitioner’s argument and denied his motion to 16 reopen the evidence. XR ECF No. 67. Specifically, the Magistrate Judge observed that because 17 the government offered Omar Garcia’s autopsy—which listed the knife wound as a cause of 18 Omar’s death—to support probable cause, and because Petitioner’s offer of Omar’s death 19 certificates amounted to an assertion that “the Court should prefer the stated cause of death on the 20 death certificate rather than the discussion in the autopsy,” the death certificates constituted 21 “evidence contradicting the government’s offer of proof.” Id. at 2. As a result, the Magistrate 22 Judge concluded that the death certificates were inadmissible “contradictory” evidence, and 23 therefore found “no grounds to reopen the evidence . . . and disturb [the] March 17, 2017 24 certificate of extradition.” Id. 25 3. Petitioner’s Two-Part Argument 26 As discussed above, in the instant habeas petition, Petitioner concedes that “[t]he only 27 28 issue is whether [Omar] Garcia was already dead when [Petitioner] allegedly cut him with a 20 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 machete,” Pet. at 17, but nonetheless asserts a two-part argument for why the Magistrate Judge 2 erred in finding that there is probable cause to believe that Petitioner killed Omar. Petitioner’s 3 argument proceeds as follows: (1) the Magistrate Judge erred by excluding Dr. Raven’s report and 4 the death certificates issued by the Guanajuato Department of the Civil Registry and Department 5 of Health; and (2) after taking these excluded pieces of evidence into account, the totality of the 6 evidence “fails to establish probable cause” to believe that Petitioner killed Omar Garcia. Id. at 7 16–24. The Court addresses each part of Petitioner’s argument in turn. 8 9 a. Admissibility of Evidence As an initial matter, Petitioner asserts that the Magistrate Judge erred by failing to allow Dr. Raven’s report and the death certificates into evidence. First, as to Dr. Raven’s report, 11 United States District Court Northern District of California 10 Petitioner argues that contrary to the Magistrate Judge’s conclusion, “Dr. Raven did not challenge 12 the autopsy report or its finding[]” that the machete wound was a cause of Omar Garcia’s death, 13 and her “description of how a body behaves after death was not meant to counter the testimony of 14 witnesses who saw bleeding and heard groaning.” Pet. at 19. Instead, according to Petitioner, Dr. 15 Raven’s report seeks only to explain “that [autopsy] reports frequently list all injuries that could 16 have independently caused the death, even though not all of those injuries actually did cause the 17 death,” and to “provide context to enable the court in evaluating the credibility of the witnesses’ 18 claims.” Id. 19 Petitioner’s argument regarding the admissibility of Dr. Raven’s report is not well-taken. 20 As the Magistrate Judge explained, the autopsy report expressly states that an “immediate” cause 21 of Omar’s death was a “‘WOUND PRODUCED BY SHARP-EDGED INSTRUMENT.’” XR 22 ECF No. 56 at 10 (quoting XR BSN 118 (caps in original)). Dr. Raven’s report does more than 23 attempt to “explain away” this finding in the autopsy report. Rather, Dr. Raven’s report provides 24 reasons for why Omar was already dead before the machete strike and affirmatively concludes that 25 Omar’s “cause of death can appropriately [be] certified as a consequence of multiple gunshot 26 wounds.” Raven Report at 2. Therefore, the central finding of Dr. Raven’s report squarely 27 contradicts the autopsy report’s cause of death finding. Further, although Petitioner insists that Dr. 28 21 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 Raven’s description of “how a body behaves after death” was meant only to “provide context” for 2 “evaluating the credibility of the witnesses’ claims,” the Ninth Circuit has stated that evidence that 3 “tends to call into question the credibility of the government’s offer of proof” may not be 4 introduced by “an individual contesting extradition.” Santos, 830 F.3d at 993. Thus, evaluating 5 Dr. Raven’s report as a whole, and keeping in mind Dr. Raven’s statement that she was “asked [by 6 Petitioner] to specifically review [the evidence] to see if [Omar] Garcia was still alive at the time 7 the machete wound was inflicted,” the Court agrees with the Magistrate Judge that Dr. Raven’s 8 report amounts to inadmissible “contradictory” evidence. Second, as to the death certificates, Petitioner argues that “the purpose of the death 10 certificates is not to contradict the government’s offer of proof, but rather to explain ‘ambiguities 11 United States District Court Northern District of California 9 and doubtful elements in the government’s case.’” Pet. at 20 (quoting Santos, 830 F.3d at 993 12 (internal quotation marks omitted)). Petitioner’s argument is unavailing. As explained above, 13 unlike the autopsy report, the death certificates list the gunshot wounds, but not the machete 14 wound, as the cause of Omar Garcia’s death. Thus, the Court agrees with the Magistrate Judge 15 that Petitioner’s proffering of the death certificates amounts to an argument that “the Court should 16 prefer the stated cause of death on the death certificate[s] rather than the discussion in the 17 autopsy.” XR ECF No. 67 at 2. In other words, the death certificates directly “contradict[] the 18 government’s proof.” Santos, 830 F.3d at 993. As a result, the Magistrate Judge did not err by 19 excluding the death certificates from Petitioner’s extradition proceedings. 20 21 b. Probable Cause Under the Totality of the Evidence Contrary to the second part of Petitioner’s argument, even if it were proper to consider Dr. 22 Raven’s report and the death certificates, the Court finds that there would still be sufficient 23 evidence to support probable cause to believe that Petitioner committed aggravated homicide. As 24 explained above, probable cause means “‘evidence sufficient to cause a person of ordinary 25 prudence and caution to conscientiously entertain a reasonable belief in the accused’s guilt.’” In 26 re Flores Ortiz, 2011 WL 3441618 at *7 (quoting Wiebe, 733 F.2d at 553). Moreover, an 27 extradition court’s probable cause finding must be upheld “if there is any competent evidence in 28 22 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 2 the record to support it.” Quinn, 783 F.2d at 791 (emphasis added). As the Magistrate Judge explained, probable cause is supported in the instant case by an 3 autopsy report and witness statements from four eyewitnesses. See XR ECF No. 56 at 7–10. The 4 autopsy report concludes that a “WOUND PRODUCED BY SHARP-EDGED INSTRUMENT” 5 was a cause of Omar Garcia’s death. XR BSN 118 (caps in original). Additionally, two of the 6 witnesses—Luis and Victor—expressly state that Omar was still alive immediately before 7 Petitioner struck Omar with the machete, XR ECF No. 52-2 at MX000051; XR ECF No. 52-5 at 8 MX00205, while one of the witnesses—Miguel—states that Omar was still alive after the machete 9 strike. XR ECF No. 52-9 at MX000036. Indeed, in his statement, Miguel recounts that (1) in contrast to Rodolfo, who appeared to be dead, Omar appeared to Miguel and other bystanders to 11 United States District Court Northern District of California 10 be alive even after Mauricio and Petitioner departed from the parking lot; and (2) because Omar 12 appeared to be alive, Miguel and the other bystanders “proceeded to pick [Omar] up and move 13 him closer to the pickup” in order “to take him in the truck to seek medical attention.” Id. 14 Further, although there are some minor inconsistencies between the statements that two of 15 the witnesses—Pablo and Luis—gave in 2009 and the statements they gave in 2012, the 16 Magistrate Judge correctly found that (1) none of those inconsistencies “bear on the key contested 17 fact[]” of whether “Omar was still alive when” Petitioner allegedly struck Omar with the machete; 18 and (2) even setting aside Pablo and Luis’s statements as unreliable, the eyewitness accounts from 19 Miguel and Victor are sufficient to support probable cause to believe that Omar Garcia was still 20 alive immediately before sustaining the knife wound. XR ECF No. 56 at 9. Moreover, even 21 taking into consideration Dr. Raven’s cautionary statements that any “movement,” “twitching,” 22 and “noises and deep sounds coming from the back of the throat” that witnesses might have 23 observed from Omar Garcia’s body “should not be considered proof of life,” Raven Report at 2, 24 Miguel cited none of these characteristics as reasons for why Omar appeared to be alive when 25 recounting how he and several other bystanders moved Omar “to take him in the truck to seek 26 medical attention.” XR ECF No. 52-9 at MX000036. 27 28 More generally, with regards to Dr. Raven’s report as a whole, the Court agrees with the 23 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 Magistrate Judge that there is “no certainty to” Dr. Raven’s findings, XR ECF No. 56 at 11, as Dr. 2 Raven expressly states that she “cannot determine if the sharp force injury truly contributed to” 3 Omar’s death. Raven Report at 2. The Court also agrees that this lack of certainty, when 4 combined with Dr. Raven’s own observations about the “poor quality” and “minimal” 5 photographic evidence from the crime scene and the absence of “close-up photographs of blood 6 depositions at the scene,” at least partially undermines Dr. Raven’s “conclusion that the gunshot 7 wounds, and not the machete wounds, or a combination thereof, caused Omar’s death.” XR ECF 8 No. 56 at 12 (quoting Raven Report at 2). As a result, even taking into consideration the evidence that the Magistrate Judge excluded, 9 the Court finds that the witness statements and the autopsy report provide sufficient evidence “to 11 United States District Court Northern District of California 10 cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief” 12 that Petitioner committed aggravated homicide. In re Flores Ortiz, 2011 WL 3441618 at *7 13 (quoting Wiebe, 733 F.2d at 553). Again, the Court must uphold the Magistrate Judge’s probable 14 cause determination so long as there is “any competent evidence in the record” to support it. 15 Quinn, 784 F.2d at 791 (emphasis added). In other words, “weighing the evidence is not a 16 function we perform when we review the magistrate’s probable cause determination.” Sainez, 588 17 F.3d at 718. In the instant case, the Court concludes that even in the face of contradictory 18 evidence presented by Dr. Raven’s report and the death certificates, the autopsy report and the 19 witness statements—and especially Miguel’s statement—are sufficient to cross the “any 20 competent evidence” threshold and to justify a reasonable belief that Omar Garcia was still alive 21 when Petitioner allegedly struck him in the neck with a machete. Accordingly, the Magistrate 22 Judge did not err by finding that there is probable cause to believe that Petitioner committed 23 aggravated homicide.3 24 25 26 27 28 3 Petitioner also points to an article entitled Mexico’s Deathly Data, Stanford Magazine 28 (Nov./Dec. 2016). Mot. at 20 n.10 (citing XR ECF No. 52-8). That article discusses, inter alia, how well-funded criminal organizations in Mexico frequently “buy off local officials as well as municipal, state and federal police officers.” XR ECF No. 52-8. Based on this article, Petitioner urges the Court to “apply particular scrutiny to all of the statements obtained by the Mexican authorities in light of the widespread corruption of law enforcement.” Id. However, the Court 24 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 2 3 IV. CONCLUSION For the foregoing reasons, the petition for writ of habeas corpus is DENIED. IT IS SO ORDERED. 4 5 6 7 Dated: February 8, 2018 ______________________________________ LUCY H. KOH United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agrees with the Magistrate Judge’s determinations that (1) Petitioner’s request to “distrust all evidence obtained from the Mexican government” based on one magazine article is a “sweeping request” that “is poorly supported”; and (2) “the article is irrelevant” in the instant case “because no one alleges a criminal organization was in any way involved in Omar’s murder.” XR ECF No. 56 at 10 n.2. As a result, the Court finds that the Stanford Magazine article falls well short of defeating probable cause in the instant case. 25 Case No. 17-CV-02129-LHK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS