64 F.4th 1106
9th Cir.2023Background
- Peru sought Alejandro Toledo's extradition for alleged bribery, money laundering, and collusion based on prosecutor decisions and an Acusación Fiscal; Peru later submitted supplemental requests.
- A U.S. federal prosecutor filed a criminal complaint; a magistrate judge certified Toledo for extradition and the State Department later approved surrender.
- Toledo filed a habeas petition in the Northern District of California challenging the extradition; the district court denied relief and he appealed.
- Toledo moved for a stay of extradition pending appeal, arguing (1) the Treaty requires a formal Orden de Enjuiciamiento (not an Acusación Fiscal), (2) Peru failed to submit a valid charging document, and (3) no probable cause existed.
- The district court entered a temporary stay to allow this court to consider a stay; the Ninth Circuit denied Toledo’s stay motion, finding he had not shown a likelihood of success on the merits despite irreparable harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “charged with” under the U.S.–Peru Extradition Treaty requires an Orden de Enjuiciamiento | Treaty requires formal Orden de Enjuiciamiento before extradition | “Charged with” is broader; Acusación Fiscal and other accusatory instruments suffice | Held for Defendant: “charged with” is not limited to an Orden de Enjuiciamiento; Acusación Fiscal can satisfy the Treaty |
| Whether Peru supplied a valid “copy of the charging document” | Only an Orden de Enjuiciamiento qualifies, so Peru’s submission was insufficient | The Acusación Fiscal is a charging document under Peruvian law and Treaty context | Held for Defendant: Acusación Fiscal qualifies as the charging document provided |
| Whether probable cause exists to support extradition | Evidence is inconsistent; contested evidence excluded; no probable cause | Testimony of accomplices and Toledo’s admissions provide competent evidence of probable cause | Held for Defendant: Probable cause exists; accomplice statements and admissions suffice; inconsistencies do not defeat probable cause |
| Whether a stay should issue pending appeal (stay factors: irreparable harm, public interest) | Extradition would moot the appeal and risk Toledo’s health and life — irreparable harm favors a stay | Government/public interest favors complying with a valid extradition and international comity; issuance would harm Peru–U.S. relations | Held: Irreparable harm shown but likelihood of success not shown and public interest favors surrender — stay denied |
Key Cases Cited
- Fernandez v. Phillips, 268 U.S. 311 (probable-cause standard in extradition review)
- Santos v. Thomas, 830 F.3d 987 (Secretary of State has ultimate decision on surrender after certification)
- Nken v. Holder, 556 U.S. 418 (stay factors and equitable balancing)
- Emami v. U.S. Dist. Ct. for the N. Dist. of Cal., 834 F.2d 1444 ("charged with" not limited to a public/formal charge)
- In re Assarsson, 635 F.2d 1237 ("charged with" construed generically to mean accused)
- Mainero v. Gregg, 164 F.3d 1199 (competent evidence standard for reasonable grounds)
- Zanazanian v. United States, 729 F.2d 624 (self-incriminating statements of accomplices can establish probable cause)
- Artukovic v. Rison, 784 F.2d 1354 (extradition may moot appellate review; public-interest considerations)