Lead Opinion
Dissent by Judge CALLAHAN
OPINION
Jose Luis Munoz Santos (“Munoz”), appeals the district court’s denial of habeas
We hold that evidence of coercion is explanatory, and may be considered by the extradition court, even if the evidence includes a recantation. We reverse the judgment of the district court, and we remand to the district court to issue the writ of habeas corpus unless the extradition court certifies Munoz’s extraditability after proceedings consistent with this opinion.
I. THE EXTRADITION PROCESS
The procedural history of this case will be easier to navigate with an overview of the extradition process in mind. Extradition law is based on a combination of treaty law, federal statutes, and judicial doctrines dating back to the late nineteenth century. See 18 U.S.C. §§ 3181-96; see also Ronald J. Hedges, International Extradi
Authority over the extradition process is shared between the executive and judicial branches. The process begins when the foreign state seeking extradition makes a request directly to the U.S. Department of State. If the State Department determines that the request falls within the governing extradition treaty, a U.S. Attorney files a complaint in federal district court indicating an intent to extradite and seeking a provisional warrant for the person sought. See Vo v. Benov,
The Supreme Court has described these extradition hearings to determine probable cause as akin to a grand jury investigation or a preliminary hearing under Federal Rule of Criminal Procedure 5.1. See, e.g., Charlton v. Kelly,
In probable cause hearings under American law, the evidence taken need not meet the standards for admissibility at trial. Indeed, at a preliminary hearing in federal court a “finding of probable cause may be based upon hearsay in whole or in part.” Fed. R. Crim. P. 5.1(a). This is because a preliminary hearing is not a minitrial of the issue of guilt; rather, its function is the more limited one of determining whether probable cause exists to hold the accused for trial. An extradition hearing similarly involves a preliminary examination of the evidence and is not a trial.
United States v. Kin-Hong,
Foreign states requesting extradition are not required to litigate their criminal cases in American courts. Accordingly, the scope of the extradition court’s review “is limited to a narrow set of issues concerning the existence of a treaty, the offense charged, and the quantum of evidence offered. The larger assessment of extradition and its consequences is committed to the Secretary of State.” Kin-Hong,
Given the limited nature of extradition proceedings, neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply. See Mainero v. Gregg,
The difference between “explanatory” and “contradictory” evidence is easier stated than applied. The federal courts have struggled to distinguish between the two. See, e.g., Hoxha v. Levi,
If the extradition court determines that there is probable cause to extradite, it enters an order certifying extradition to the Secretary of State, who ultimately decides whether to surrender the individual to the requesting state. 18 U.S.C. § 3186; Vo,
II. PROCEEDINGS BELOW
Munoz is wanted in Mexico on kidnapping charges arising out of the kidnapping for ransom of Dignora Hermosillo Garcia (“Hermosillo”) and her two young daughters from their home near Tepic, a city in the state of Nayarit, Mexico, in August 2005. Hermosillo and her daughters were abducted from their home at gunpoint by a man in a ski mask. The abductor eventually abandoned the two girls, one at a time, by the side of the road; the youngest of the girls died before she was found. Hermosillo was similarly abandoned, with her mouth, eyes, ears, hands, and feet duct taped, after giving her captor the PIN for her bank card and her husband’s cell phone number. She managed to free herself using a piece of barbed wire, walked to the .highway, and hitched a ride into the town of Jolotemba, where she called her husband to come pick her up.
Mexico requested Munoz’s extradition. He was arrested in the United States on May 17, 2006 in connection with the kidnapping.
A. Extradition Hearing
The U.S.-Mexico extradition treaty states that “[ejxtradition shall be granted only if the evidence be found sufficient, according to the laws of the requested Party ... to justify the committal for trial of the person sought if the offense of which he has been accused had been committed in that place.” U.S.-Mexico Extradition Treaty, art. 3, May 4, 1978, T.I.A.S. No. 9656. In other words, we assess whether, based on the evidence, the person could be brought to trial for the same crime in the United States. Munoz stipulated below that all elements except probable cause have been satisfied — thus, the only element disputed in the extradition hearing, and here on appeal, is whether the probable cause element is satisfied. The key
1. The government’s evidence
In order to establish probable cause that Munoz was involved in the kidnapping, the government relied principally on statements from two of Munoz’s alleged co-conspirators, Jesus Servando ^Hurtado Osuna (“Hurtado”), and Fausto Librado Rosas Alfaro (“Rosas”). The government also submitted three additional statements to corroborate Rosas’s and Hurtado’s stories. We review this evidence in detail below.
a. Rosas’s statement
On March 27, 2006, Rosas submitted a written preliminary statement to the presiding criminal trial judge in his case in Mexico implicating Munoz, Hurtado, and himself in the kidnapping of Hermosillo and her daughters. According to his statement, Rosas abducted Hermosillo and her daughters, but Munoz was the brains of the operation. Rosas stated that he had known Munoz for several years because they “have a business in which [they] buy and sell clothes.” In July 2005, Munoz contacted Rosas on the phone about a “job” he was planning, and stated that he would explain in detail at a planned meeting in Tepic, Nayarit. In mid-July, Rosas met with Munoz, a man named “Negro,” whom Rosas identified as Hurtado, and two others. At this point, Rosas learned what the “job” was. Munoz wanted to recruit Rosas to assist in a plan to kidnap Hermosillo and hold her for ransom, and Rosas agreed to participate. A few days later, the conspirators met at a nightclub at Zapata and Zacatecas Streets to discuss the details, including the amount of ransom to be demanded from “Beto.” “Beto” is a common nickname for Roberto, which is the name of Hermosillo’s husband, Roberto Castellanos Meza (“Castellanos”). According to Rosas, Hurtado was invited to participate in the job at this second meeting, and eventually agreed to join.
On August 9, 2005, the conspirators met again, and Rosas told Hurtado that his job was to watch the house and let the others know “when a lady in a white van arrived.” On August 18, the day of the job, Hurtado informed the conspirators that Hermosillo had arrived home with her two daughters in a white Cherokee van. Rosas stated that he “hid behind the main door,” and once in the house, threatened Hermosillo with a gun while wearing a black ski mask. He was not supposed to take the two girls, but became nervous and put them in the backseat of the white Cherokee as well.
During the drive, Munoz called Rosas and instructed him to release the girls together. Rosas first released the girls and then Hermosillo at three different locations along the side of the road. He met with Munoz later that same day and gave him Hermosillo’s cell phone. Munoz then called Castellanos, and demanded a ransom for Hermosillo and the girls even though they had already been released. Rosas stated that Munoz “kept making phone calls,” and that he did not know why no one went to retrieve the girls from where he had left them, “because the plan was to take them to [a] rented house to take care of them.” Munoz later got into an argument with one of the other conspirators, told Rosas that they “were in terrible trouble,” and that he, Munoz, would handle it himself. Munoz then “escaped” and went to Hermosillo, Sonora.
b. Hurtado’s statement
Hurtado made a sworn statement to a Deputy District Attorney in Tepic, Nayar-it, on March 14, 2006. He requested the assistance of his public defender, Juan Manuel Ramírez Dueñas, who accepted the
During the last week of July 2005, Hur-tado left his brother’s carpentry shop, and while walking, ran into El Pelón, whom he identified as Jorge Gonzalo Lopez Chavez. Hurtado had known Lopez Chavez for about twenty years because they lived in the same neighborhood. They bought some beers and then Hurtado accompanied Lopez Chavez to a paint store, and when they arrived, Lopez Chavez got out of the car and began speaking with El Chilango, whom Hurtado identified as Rosas. Hurta-do stated that he had only known Rosas by sight for a few months. The three went back out to buy more beer and then returned to the paint store, where they stayed for about fifteen minutes, until Lopez Chavez took Hurtado home.
Approximately four days later, Hurtado ran into Lopez Chavez again, and Lopez Chavez asked Hurtado to accompany him downtown. They ran into Rosas again and the three went to a nightclub located on Zacatecas and Zapata streets. Munoz was waiting for them there. Hurtado did not know Munoz at that time. As they were inside drinking, Hurtado overheard Rosas ask Munoz, “Hey, what’s going on with the job?” Hurtado didn’t pay any attention to their conversation, and eventually left the club with Lopez Chavez. On the way home, he asked Lopez Chavez about the “job,” but Lopez Chavez did not answer. •
The next day, Hurtado went to Lopez Chavez’s house to ask again about the “job,” because he needed money. Lopez Chavez said that he could take Hurtado to see Rosas, who would tell him about the job, and Hurtado agreed. Lopez Chavez
On August 18, Rosas and Lopez Chavez came to Hurtado’s house and told him that they were going to pull the job that night. Hurtado was supposed to watch the house and call Rosas’s cell phone when Hermosillo arrived, and Rosas, Munoz, and another conspirator, Lopez Mendivil, would grab Hermosillo. The three were to drive Hermosillo to a rented house in a nearby town, and Hurtado was to wait and would be paid by Rosas. At about 9:00 that night, Hurtado took a white taxi to the neighborhood to keep watch. He called Rosas from a payphone when Hermosillo drove up, and then watched as Lopez Chavez and Rosas drove up to the house. Rosas ran into the garage “hooded,” put Hermosillo and her two daughters in Hermosillo’s car, and drove off at “full speed.”
Hurtado got back into the taxi and drove by the place where Munoz and Lopez Men-divil were waiting, where he heard Munoz “telling ... off’ Rosas on the phone for not following the plan. The taxi then drove Hurtado home. Hurtado also noted that when he was driving around in the taxi that same night after the kidnapping, he was stopped twice by “afi agents” (Mexican federal authorities) and questioned about what he was doing at that time of night, but then released. He did not see the other members of the conspiracy again.
At the end of this statement, Hurtado declared that he had read Munoz’s statement and that Munoz, Lopez Chavez, Ro-sas, and Lopez Mendivil lied when they denied their involvement. He identified Munoz’s photograph as well. Finally, he stated that he was under “no coercion, physical or moral violence on the part of [the District Attorney’s] office or on the part of the officers of the state police.”
c. Other evidence
The government submitted three other statements to corroborate Rosas’s and Hurtado’s statements implicating Munoz. It included Hermosillo’s statement describing the details of her kidnapping and release and her identification of Rosas. According to Hermosillo, the abductor tugged on his ski mask while they were driving, and Hermosillo noticed that he had “a mole or a scar” on his nose. Hermosillo later identified Rosas as the man who had abducted her from her home based on photographs the Mexican authorities showed her. The government also introduced a statement by Benigno Andrade Hernandez (“Andrade”), who told Mexican prosecutors that he had been approached by Rosas and Munoz a month or so before the kidnapping, and asked if he was interested in “pulling a job” to extort “Beto” for two million pesos. Finally, the government included a statement from Castellanos, made to Mexican prosecutors, in which Castellanos described a phone call he had received from his wife’s phone the day of the kidnapping, but had been cut off before he could answer. Castellanos tried unsuccessfully to locate his family after his brother informed him that the garage door to the family’s house had been left open, and that Hermosillo’s car was missing. The next morning, Castellanos received a call from Hermosillo asking him to pick her up in the town where Rosas had abandoned her.
To undermine the government’s showing of probable cause, Munoz sought to introduce additional evidence at his extradition hearing, including several statements by Rosas and Hurtado alleging that their statements implicating Munoz had been obtained by torture or coercion. Again, we review these statements in detail.
a. Rosas’s additional statements
■ On May 25, 2006, two months after providing his original preliminary statement, Rosas was given the opportunity to verify or retract his preliminary statement before a Mexican judge, under oath.
Munoz also sought to introduce another statement by Rosas, made on June 20, 2006, again sworn in court. Rosas was represented by a public defender. He denied the parts of his preliminary statement in which he implicated himself, stating that when he was taken into court, he was only asked whether he recognized his own signature on the statement. He was not read the statement itself. He was told that something bad would happen to his family, and that the police knew his wife and son had arrived in a black Altima. Rosas also stated that he was beaten and threatened on several occasions while in custody. He again identified Martin Lujan, whom he described as the “General Director.”
According to his June 20th statement, when Rosas was detained, he was taken to a cell, “without lights, and with only a chair.” He was tied to the chair, had a bag placed over his head, and was struck repeatedly in the chest while being asked what he knew about the kidnapping. Rosas repeated facts that he remembered from the district attorney’s file on the case, “so that they would stop torturing [him].” The next morning he was taken out of his cell, and told that he was going to a press conference, at which he was expected to implicate himself and Munoz, or else he would be beaten again. Rosas went to the press conference but denied his involvement in the kidnapping; he was brought back to the prison and held incommunicado for two days, during which time Lujan periodically beat him.
Eventually, the police sent a detailed written statement to Rosas through his lawyer, and Rosas was directed to sign it or else “something serious” would happen to his family. Rosas’s' lawyer “never told [him] anything” regarding the statement— Rosas stated that he made the decision to sign the statement alone, “due to the threats and beatings” to which he .was subjected. Rosas was asked, in court if Lujan ever told him why he wanted to force Rosas to confess, and Rosas said that Lujan told him that he was under pressure from “the father of the victims,” who was “calling him and pressuring him from the outside.”
On March 22, 2006, Hurtado gave a similar statement before a judge in Mexico, under oath and represented by private counsel. Hurtado stated that he “[did] not ratify” either his October 12, 2005 or March 14, 2006 statements, because the statements were false and had been obtained under torture. Hurtado stated that after he dropped his daughter off at his mother’s house, he was abducted, and forced into a “gray Lobo truck with tinted windows.” A “cap” was placed over his head, and he was taken to an unknown location. Someone started hitting him in the face, asking him to “tell them the truth.” A plastic bag was placed over his head and tightened until he could not breathe. Hurtado told his captors that he didn’t know anything. He was shown photographs of people but did not recognize anyone. His captors poured water into his nose and mouth, beat him, and questioned him again. According to Hurtado, this went on for several days. He was told more than once that if he did not “cooperate” his daughter would be given to him in “pieces.”
Eventually, Hurtado was taken out at night, blindfolded, and presented to “a man at a desk,” where he was told that if he stated what he had been told to state, he would be allowed to see his family. He made his statement as directed, and then was taken back to where he was being held captive. The day before he was brought before the court, he was taken to the Public Prosecutor’s Office, and the chief of the judiciary police told him that he had to “say what they had told [him] before.” He was not allowed to call his family or speak with a lawyer. The police brought him before “cameramen” who were taking pictures and asking questions.
Hurtado stated that he had nothing to do with the kidnapping and did not know anyone involved. He identified the “man who caught [him]” as a “potbellied, tall judiciary police office with short, wavy hair.” His attorney asked the court to take note of Hurtado’s injuries, and the Clerk of the Court noted that Hurtado had “minor bruises on both cheekbones ... complain[ed] about [a] left earache, as well as pain on the right foot next to the shin.”
Hurtado gave another sworn statement before a judge on May 25, 2006, again represented by counsel, in which he reiterated much of his March 22 statement. He alleged that he had been detained by the state police for twelve days, during which time he was tortured, had bags placed over his face, was punched in the stomach, had water poured into his nose and mouth, and received death threats. He reiterated that he was “force[d]” to make incriminating statements.
On November 21, 2006, Hurtado gave further testimony in court, under oath and represented by counsel. He wished to add to his previous statements. He again reiterated that he had been detained, tortured, and kept hooded for days, and repeatedly been shown photographs of people he could not identify. He added that after he had been taken to the Prosecutor’s Office to make a statement, he was taken again to the house where he was being held, and was given a written statement to sign. Several days later, he was taken back to the Prosecutor’s Office, and when he arrived at the detention center, an inmate named Martin Lujan threatened him, and told him not to change his statement or he would be killed. He stated that he was afraid for his life and that of his family.
Finally, Munoz sought to introduce a declaration Hurtado made under oath on June 10, 2009, in which Hurtado essentially echoed the details of his previous statements. He repeated that he had been detained and beaten by the police for twelve
c. Other evidence
Munoz also sought to submit evidence to corroborate the torture allegations, including evidence that he had been tortured and his family threatened; a statement from another alleged co-conspirator, Lopez Chavez, alleging that he had been tortured; evidence that Rosas’s lawyer colluded with the Mexican government to get Rosas to sign an incriminating statement; evidence supporting Munoz’s alibi; and evidence regarding the acquittal of another co-conspirator for insufficient evidence.
3. The extradition court’s decision
In a published order, a magistrate judge, sitting as the extradition court, carefully considered the government’s evidence against Munoz and Munoz’s offer of evidence rebutting the government’s probable cause showing. The court concluded that Munoz was extraditable and declined to consider the additional evidence Munoz sought to admit, including the statements by Rosas and Hurtado alleging torture. In re Extradition of Munoz Santos,
B. Habeas Proceedings
In 2011, Munoz filed a habeas petition challenging the extradition order, claiming that the extradition court had committed legal error in ruling the evidence of torture inadmissible. App. at 2-3. In a thorough opinion, the district court declined to issue the writ.
While extradition courts cannot weigh conflicting evidence, evidence of torture does not require such weighing. Evidence of torture addresses the circumstances under which the government’s witnesses made inculpatory statements; an extradition court properly considers evidence of torture, duress, or unlawfully procured confessions in deciding the reliability of the government’s evidence.
App. at 12.
Nevertheless, the district court concluded that it was impossible to distinguish between Rosas’s and Hurtado’s statements regarding torture, and their recantation of their previous incriminating statements.
A panel of this court affirmed, agreeing that the statements concerning torture were properly excluded by the extradition court, and concluding that Rosas’s and Hurtado’s statements were “inadmissible recantations.” Munoz Santos v. Thomas,
We granted en banc review and vacated the panel opinion. Munoz Santos v. Thomas,
III. JURISDICTION AND STANDARD OF REVIEW
The extradition court had jurisdiction under 18 U.S.C. § 3184. The district court had jurisdiction pursuant to 28 U.S.C. § 2241(a), and we have jurisdiction under 28 U.S.C. §§1291 and 2253(a). Under § 3184, “any justice or judge of the United States, or any magistrate judge authorized
There is no right of direct appeal to a district court or a court of appeals from the extradition court’s certification of extraditability. Because the extradition court’s order is not final for purposes of 28 U.S.C. § 1291, the “only available avenue to challenge an extradition order” is through a habeas petition. Vo,
The district court’s habeas review of an extradition order is limited to whether: (1) the extradition magistrate had jurisdiction over the individual sought, (2) the treaty was in force and the accused’s alleged offense fell within the treaty’s terms, and (3) there is “any competent evidence” supporting the probable cause determination of the magistrate.
Vo,
IV. ANALYSIS
The issue before us is whether the extradition court properly refused to consider evidence that Rosas’s and Hurtado’s statements — in which they confessed to their involvement in the kidnapping and implicated Munoz — were obtained by coercion, including torture. The extradition court refused to consider evidence of coercion because it was contained in subsequent statements in which Rosas and Hur-tado recanted their earlier testimony. The extradition court excluded the subsequent statements because they were “contradictory” and not “explanatory,” rendering the statements inadmissible under the Supreme Court’s framework governing an extraditee’s ability to present evidence in the extradition proceeding. For reasons we explain in Part A, this was legal error. The extradition court should have considered the evidence of coercion because a coerced statement is not competent evidence and cannot support probable cause.
In Part B we address a second issue: whether, assuming arguendo that we must exclude Rosas’s and Hurtado’s confessions, there is sufficient evidence of probable cause to affirm. We conclude that we cannot resolve this question on this record^ and we remand this case to the district court with instructions to return this case to the extradition court for further proceedings to address the competency and the sufficiency of the government’s evi- • dence.
A. Exclusion of Rosas’s and Hurtado’s Statements
Our task is to determine whether there is any competent evidence supporting the extradition court’s finding of probable cause. The extradition court found proba
There can be little question that, standing by themselves, Rosas’s March 27, 2006 statement and Hurtado’s March 14, 2006 statement, whether considered separately, together, or together with statements from Hermosillo (the victim), Castellanos (her husband), and Andrade (who may have heard early plans for the kidnapping) constitute probable cause to believe that Munoz participated in the kidnapping of Hermosillo and her daughters. The statements were detailed and authenticated. Hurtado gave his statement in the presence of his public defender and under oath to a deputy district attorney in Mexico. Rosas submitted his statement in writing to the judge presiding over his case and asked that it be included in the court’s record.
The extradition court, however, refused to consider subsequent statements by Ro-sas and Hurtado in which they recanted their initial statements, claiming that the Mexican police had coerced them into making those statements. The extradition court, and the district court on habeas, concluded that the allegations of torture were inadmissible because, as the district court described it, the claims were “inextricably intertwined” with the recantation statements. App. at 19-20; Extradition of Munoz Santos,
As we review Rosas’s and Hurtado’s various subsequent statements, which are quite detailed, their claims are of two types (and here we are simplifying): (1) I wasn’t involved, and (2) the reason I previously said I was involved is that I was tortured or otherwise coerced. The first type of statement is a recantation of the kind that courts have properly refused to consider. For example, in Barapind we considered whether there was evidence to support Barapind’s extradition to India for crimes in connection with his activities as a leader in the All India Sikh Student Federation. In support of the charges, India produced an affidavit from a police inspector, who claimed that Nirmal Singh, an eyewitness, had identified Barapind as one of the principals in a shootout with government officials. Barapind,
Similarly, in Bovio v. United States, the petitioner argued that probable cause was lacking, in part, because the major witness on which the government relied had admitted to lying during the investigation.
Rosas’s and Hurtado’s recantations of their prior confessions are, indeed, contradictory. But their claims that their prior statements implicating themselves and Munoz were obtained under duress are not contradictory, but explanatory. Recanting statements contest the credibility of the original statements, presenting a different version of the facts or offering reasons why the government’s evidence should not be believed. Reliable evidence that the government’s evidence was obtained by torture or coercion, however, goes to the competence of the government’s evidence.
The Supreme Court has long held that the Due Process Clause of the Fifth and Fourteenth Amendments bars the admission of coerced confessions. “The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession.” Ashcraft v. Tennessee,
We and other courts have sometimes explained the inadmissibility of coerced confessions in terms of their unreliability. See, e.g., Crowe v. County of San Diego,
[Tjhere may be a relationship between the involuntariness of a confession and its unreliability. But our decision [in Jackson v. Denno,378 U.S. 368 ,84 S.Ct. 1774 ,12 L.Ed.2d 908 (1964)] was not based in the slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. That case was not aimed at reducing the possibility of convicting innocent men.
Quite the contrary, we feared that the reliability and truthfulness of even coerced confessions could impermissibly influence a jury’s judgment as to volun-tariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles.
■ The Court’s clarity on this point gives us a different perspective on Munoz’s claim that the principal evidence against him was obtained through coercion that may have amounted to torture.
An allegation of coercion is essentially a second-order question — a question about questions; the allegation undermines the process by which the evidence was obtained, not the credibility of the evidence itself. There are a number of examples in which we and other courts have distinguished between the evidence and the process. This is true even where the allegations of torture or coercion appear alongside claims that a previously made incriminating statement is not true — i.e., where the allegations of coercion include recantation statements. In these cases; once the evidence of coercion is admitted, courts weigh whether the allegations of coercion are credible, and if so, whether probable cause still exists once the tainted evidence is excluded from the analysis. See, e.g., Cornejo-Barreto,
In sum, we have treated allegations of torture or coercion differently from a recantation statement, even where the allegations of coercion are made in conjunction with a claim that a previous incriminating statement was false. Contrary to what the district court and the extradition court concluded here, it is possible to separate the two inquiries. Indeed, to hold ’otherwise would create an odd rule in which allegations of coercion would only be admissible when the witness admits that the incriminating statements were true. This makes little sense, because the question of whether a recantation statement is credible or not is irrelevant to the question of whether the incriminating statement — recanted or not — was obtained under coercion, i.e., is competent evidence. We conclude that evidence that a statement was obtained under torture or other coercion constitutes “explanatory” evidence generally admissible in an extradition proceeding. An extradition court may properly consider evidence of torture or coercion in considering the competency of the government’s evidence, even when the claim of coercion is intertwined with a recantation.
Our decision in Barapind supports our conclusion. We observed in that case that the extradition court had conducted “a careful, incident-by-incident analysis as to whether there was impropriety on the part of the Indian government” in obtaining the statements on which probable cause rested. Barapind,
The portion of our decision in Barapind that appears to have presented a stumbling block for both the extradition court and the district court here involved a different charge based on the inculpatory affidavit of Makhan Ram. Barapind offered a second affidavit from Ram in which Ram claimed that police had forced him to sign blank pieces of paper, on which statements incriminating Barapind were later written. Ram said his statement implicating Bara-pind was a “falsification.” Id. at 1024; see also Barapind,
The extradition court and the district court here relied on this section of Bara-pind in concluding that Rosas’s and Hur-tado's statements alleging coercion were inadmissiblé evidence. But what the extradition court did here is different from what the extradition court did in Bara-pind. In Barapind, the extradition court first considered the allegations of coercion, before concluding that it could not determine their reliability without exceeding the scope of its review. Here, however, the extradition court refused to consider Ro-sas’s and Hurtado’s statements in the first instance. This was error. A petitioner in an extradition proceeding has the right to introduce evidence that “explains away” or “obliterates” probable cause, and credible evidence that a statement was obtained under coercion does just that by undermining the competence of the government’s evidence.
The dissent argues that the government’s evidence need only be properly authenticated, as required under 18 U.S.C. § 3190, to be admissible in an extradition proceeding, seeming to suggest that admissibility necessarily renders the government’s evidence sufficient to satisfy probable cause. Dissenting Op. at 1042-43. Such a suggestion conflates the admissibility standard with the standard required to satisfy probable cause. Simply because evidence has been authenticated does not mean any evidence the government submits is sufficient to satisfy probable cause. Were that the case, the judiciary’s role in the extradition process would be meaningless. 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.” Skaftouros v. United States,
We wish to be clear, however, that the scope of our holding here is limited, and that our decision should not be taken as a license to engage in mini-trials on the question of coercion or torture. The extradition court does not have to determine which party’s evidence represents the truth where the facts are contested. Where an extradition court first considers evidence that a statement was improperly obtained, but concludes that it is impossible to determine the credibility of the allegations without exceeding the scope of an extradition court’s limited review, the court has fulfilled its obligation — as the extradition court did in Barapind. If the court cannot determine the credibility of the allegations (or other evidence) once it has examined them, the inquiry ends. Probable cause is not undermined, and the court must certify the extradition. See 18 U.S.C. § 3184.
The extradition court, of course, may consider other evidence, separate from potentially tainted evidence, that will satisfy the probable cause requirement. See, e.g., Barapind,
Our holding today is narrow: Evidence that a statement was obtained by coercion may be treated as “explanatory” evidence that is admissible in an extradition hearing.
B. Probable Cause
Although we have concluded that the-extradition court improperly excluded Rosas’s and Hurtado’s subsequent statements alleging that their initial inculpatory statements had been obtained by coercion, our inquiry is not at an end. Our inquiry-on habeas review is whether any competent evidence supports the extradition court’s probable cause finding. Vo,
The district court carefully considered whether, if the court excluded Rosas’s and Hurtado’s statements, there remained sufficient evidence to support a probable cause finding against Munoz. It concluded that the matter was “close,” but that there was not. App. at 17-18 n.41. We share the district court’s doubts. Neither Castellanos’s nor Hermosillo’s statements mention Munoz; at best they connect Rosas to the kidnapping, but only Rosas’s and Hurtado’s statements implicate Munoz. Without Rosas’s and Hurtado’s statements, only Andrade’s statement that Rosas and Munoz approached him about a “job” to extort “Beto” for two million pesos potentially connects Munoz to the kidnapping. This statement, however, lacks any other specifics that would suggest the “job” was a kidnapping involving Roberto Castellanos’s family. Standing alone, Andrade’s statement is insufficient to support probable cause. This is not a case in which there is overwhelming evidence available from other sources. Nevertheless, because the question is a close one, we think the extradition court should decide this question in the first instance, when it will have the opportunity to redetermine the admissibility of Munoz’s evidence and then consider all of the evidence together.
The extradition court here “operated under a mistaken understanding of what constitutes circuit law,” Barapind,
The extradition court may consider the competency and sufficiency of the government’s evidence, exercise discretion as to the admission of Munoz’s proffered evidence, and consider any other evidence it deems necessary, consistent with our opinion. See, e.g., Greci,
IV. CONCLUSION
We reverse the judgment of the district court and femand this case to the district court with instructions to discharge the petitioner unless, within 90 days, the extradition court certifies Munoz’s extradita-bility under 18 U.S.C. §3184 after proceedings consistent with this opinion. If the extradition court issues a certificate of extraditability to the Secretary of State, the district court shall dismiss the petition, subject to renewal for adequate cause.
REVERSED AND REMANDED.
APPENDIX
Notes
. We note that the extradition court’s opinion was originally reported as In re Extradition of Santos,
This naming convention appears to have caused a great deal of confusion among American courts generally. The Bluebook's guidance on this issue is unclear, noting that "if a party’s name is of Spanish or Portuguese derivation, cite the surname and all names following,” but without clarifying how a court is to determine what a person's surname actually is. The Bluebook: A Uniform System of Citation Rule 10.2.1(g), at 100 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015). Likewise, legal research databases frequently get this wrong.
In the interest of allaying this confusion— and avoiding unintended consequences — we provide this explanatory note as guidance for ourselves and the lower courts.
. In October 2005, Hurtado gave a highly detailed, sworn statement to the Deputy District Attorney that told a very different story and which was not presented as part of the government’s evidence in the extradition court. In his October 2005 statement, Hurta-do stated that in early August before the kidnapping, he and two friends, El Pelón and El Sapo, had been smoking marijuana and made a plan to rob Hermosillo's house, because it "looked luxurious.” Hurtado knew the house because he worked as a carpenter nearby. El Pelón and El Sapo agreed and said they would give Hurtado 30,000 pesos to do the job. On August 18, at about 5:00 in the evening, Hurtado called El Sapo’s phone and asked him whether he was going to participate in the robbery as planned. El Sapo said yes and that he was planning to enter the house with someone named "Chonte.” At 8:00, Hurtado called a taxi, which he remembered was a white Atos, and went to Hermosillo's house. He stopped about two blocks away and called El Sapo again, who told him to wait until 10:00. When Hurtado called El Sapo again two hours later, he told him that he and Chonte were on the way to the house. Hurtado stated that he saw El Sapo’s light brown Ford truck drive by the house and assumed that all was going according to plan. Hurtado then told the taxi driver to take him to buy cocaine at a nearby motel known as the "Posada Real.” Hurtado and the taxi driver then drove back past Hermosillo’s house, where they did not see anyone.
Hurtado said they got about two blocks down the street before they were stopped by several cars driven by men. The men pulled Hurtado out of the taxi and put him in the backseat of one of the other cars and demanded "Where is the truck?” Hurtado said he didn't know anything and that he had only been in the area to drink beer. The men questioned him for about thirty minutes and then put him and the taxi driver in the backseat of another car, where they were told that the men were “investigating something awful that had happened.” Hurtado and the taxi driver were eventually released, and the taxi driver took Hurtado home.
Finally, Hurtado stated that he recognized a photo of Munoz that the District Attorney's Office showed him, and that he only knew Munoz by sight.
. In Mexican courts, witnesses are given an opportunity to accept, reject, or amend their preliminary or “ministerial” statements when they make their first appearances before the judge trying a case — the purpose being to weed out false or coerced confessions. See, e.g., In re Extradition of Garcia,
. The district court's opinion is not published in any database. Because of its importance to this case, we have reprinted it in an appendix to this opinion.
. Because the Due Process Clause prohibits the use of coerced statements, including those obtained by torture, we need not address whether the Convention Against Torture would also prohibit the use in extradition proceedings of statements obtained under torture. See Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 15, Dec. 10, 1984, 1465 U.N.T.S. 85.
. Belying the dissent’s assertion that "[f]or-eign governments seeking extradition are unlikely to let allegations of torture lie unanswered.” Dissenting Op. at 1046.
. Our extended discussion of Barapind rebuts the dissent's unfounded claim that we have "recantfed]” that decision. Dissenting Op. at 1043. Far from it: we have carefully explained why our decision here follows from our nuanced decision in Barapind.
. Nor does the rule of non-inquiry apply here: the long-standing principle that courts should refrain from inquiring into how an individual will be treated by a foreign state if extradited. In other words, the rule bars the judiciary from preventing the surrender of a fugitive on the basis of humanitarian considerations once extradition has been certified, reserving that decision to the Secretary of State. See, e.g., Hoxha,
Dissenting Opinion
with whom IKUTA, Circuit Judge, joins, dissenting:
The question in this habeas case is straight-forward: Under the federal extradition statute, 18 U.S.C. §§ 3181-3195, and the terms of the extradition treaty between the United States (“Government”) and Mexico, did the extradition judge err in excluding evidence that contradicts the Mexican government’s evidence of probable cause to believe that Jose Luis Munoz Santos (“petitioner”), a fugitive of Mexico, is guilty of kidnapping in Mexico? The majority answers with a resounding “yes,” overturning more than a century’s worth of extradition jurisprudence. It first re
Extradition judges are not judicial Transformers; they are not trial judges in ¡.disguise. Congress, has never deputized extradition judges for this purpose, nor has it vested Article III judges with the power to expand the limited role these judicial officers serve in the realm of foreign relations. The majority’s approach violates the terms of the governing treaty and the statutory framework established by Congress. The approach also interferes with the diplomatic relationship that the Executive and Legislative branches have established with Mexico. Because the Judiciary is not authorized to drive a wedge in that relationship, I dissent.
I. Background
Mexican authorities have charged the petitioner with kidnapping Dignora Hermosillo Garcia (“Hermosillo”) and her four- and six-year-old daughters for ransom in August 2005.
(1) Hermosillo described the kidnapping and identified Fausto Librado Rosas Al-faro (“Rosas”) as the armed, masked man who abducted her and her daughters from their home and tied them up (August 29, 2005 and November 7, 2005);
(2) Roberto Castellanos Meza (“Castella-nos”), Hermosillo’s husband and the father of the abducted children, described events that transpired before and after the kidnapping (August 21, 2005);
(3) Benigno Andrade Hernandez (“An-drade”) voluntarily appeared before a prosecutor and incriminated himself, Munoz and Rosas in a sworn statement, and identified both in photographs (January 12, 2006);
(4) Jesus Servando Hurtado Osuna (“Hurtado”), a co-conspirator, received assistance from a public defender and incriminated himself, Munoz, Rosas and two other individuals, admitting their involvement both in planning and executing the kidnapping (March 14, 2006); and
(5) Rosas, a co-conspirator, appeared before a criminal court judge and implicated himself, Hurtado and Munoz, and corroborated Hurtado’s version of events (signed March 27, 2006).
In re Extradition of Santos,
The statements were made to Mexican law enforcement or to the Mexican judiciary and properly authenticated, a fact the petitioner does not contest. Specifically,
[t]hat evidence was contained in various filings accompanied by certificates with ribbons and seals signed by the then-current principal consular officer, the “Minister Counselor of Consular Affairs” of the United States at Mexico City, Mexico, attesting that the annexed documents were “properly and legally authenticated so as to entitle them to be received in evidence for similar purposes by the tribunals of the United Mexican States.”
Id. at 971 (record citations omitted).
Based on the Government’s presentation, the extradition judge found probable cause to believe that the petitioner was guilty of the alleged kidnapping and, accordingly, certified his extradition. In reaching this conclusion, the judge excluded statements from the co-conspirators recanting their prior confessions, which they alleged were obtained through torture.
II. Standard of Review
“[A] habeas petition is the only available avenue to challenge an extradition order,” and the scope of review is severely limited. Vo v. Benov,
The Supreme Court has not created any exception to this rule. Habeas review is limited to “[1] whether the magistrate had jurisdiction, [2] whether the offense charged is within the treaty and, [3] by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez,
This express limitation reflects the principle that the existence of foreign criminal proceedings, which we must accept as adequate for purposes of extradition, will give the fugitive ample process to develop his claims of innocence. See Fernandez,
The majority, in essence, disregards this longstanding precedent. Although it acknowledges that a judge sitting as an extradition court must “consider whether the evidence is ‘sufficient to sustain the charge under the provisions of the proper treaty or convention,’ ” Maj. Op. 1000 (quoting 18 U.S.C. § 3184), this acknowledgment is just a token reference to 18 U.S.C. § 3184. That’s the last time either the Treaty or the statute appears in the opinion. The majority’s approach departs from the example set by the Supreme Court confining its review of an extradition order to strict applications of the extradition statute and the relevant treaty. In setting its preferred standard of review, the majority loses sight of the paramount inquiry of any extradition application: whether probable cause exists to believe that the fugitive committed the crimes charged in the requesting country. The majority’s approach allows it to make determinations reserved for the Mexican legal system. This is a clear violation of principles of international comity and separation of powers.
III. Extradition Framework
Courts play a narrowly defined role in the extradition process. The process begins with the decision of the political branches to enter into an extradition treaty, a decision that rests on those branches’ determination that the foreign country’s legal and penal system is one into which
For example, an extradition judge may not deny extradition on the ground that the requesting country will not provide a fugitive the procedures and rights available in an American criminal court, even if those rights are guaranteed under our Federal Constitution. Neely v. Henkel,
To the extent that the alleged denial of constitutional rights should affect the willingness of the United States to extradite, the Supreme Court has held that “it is for the political branches, not the Judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.” Munaf,
The Judiciary is not suited to second-guess such determinations — determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area. See The Federalist No. 42, p. 279 (J. Cooke ed. 1961) (J. Madison) (“If we are to be one nation in any respect, it clearly ought to be in respect to other nationsf.]”). In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is.
Id. at 702,
Because the political branches have plenary authority to accept the fairness of a foreign country’s legal system, it makes sense that the final decision to extradite rests with them. As defined by Congress, the Executive remains primarily responsible for extradition while the extradition judge is assigned the limited duty of determining the sufficiency of the request under the applicable treaty provisions. 18 U.S.C. § 3184; see Martin v. Warden,
IV. The Extradition Hearing
The extradition process reflects these fundamental differences in institutional competence and separation of powers principles. In Benson, the Supreme Court stated that an extradition hearing is a limited affair akin to a preliminary hearing to determine whether to hold an accused to answer for the commission of a crime.
A. Role of the Extradition Judge
We have previously stated that extradition judges “conduct a circumscribed inquiry in extradition cases.” Blaxland v. Commonwealth Dir. of Pub. Prosecutions,
B. Probable Cause Standard of Proof
The Government (on behalf of the requesting country) bears the burden of submitting evidence that is “sufficient to sustain the charge [of criminality] under the provisions of the proper treaty or convention.” 18 U.S.C. § 3184. Extradition treaties, unlike criminal statutes, “should be liberally construed as to effect the apparent intention of the parties” — i.e., in favor of enforcement-as they are brokered “in the interest of justice and friendly relationships.” Factor,
Here, the Treaty requires that evidence be “sufficient, according to [United States] laws ... to justify the committal for trial of the person sought.” Treaty, art. 3. The Treaty further provides that
[w]hen the request for extradition relates to a person who has not yet been convicted, it shall be accompanied by ... [ejvidence which, in accordance with the laws of the [United States], would justify apprehension and commitment for trial of the person sought if the offense had been committed there.
Id., art. 10(3)(b) (emphasis added).
The standard of proof set forth in § 3190 and the Treaty allows for nothing more than an inquiry into whether probable cause exists to believe that the fugitive committed the alleged crimes. Probable cause exists when, under the “totality of the circumstances known to the [Government], a prudent person [knowing those facts] would have concluded that there was a fair probability that [the accused] had committed a crime.” United States v. Smith,
In the context of evaluating the sufficiency of a criminal complaint, the Supreme Court framed the probable cause inquiry as simply: “What makes you think that the defendant committed the offense charged?” Jaben v. United States,
does not reflect a requirement that the Commissioner ignore the- credibility of the complaining witness. There is a difference between disbelieving the affiant and requiring him to indicate some basis for his allegations. Obviously any reliance upon factual allegations necessarilyentails some degree of reliance upon the credibility of the source. Nor does it indicate that each factual allegation which the affiant puts forth must be independéntly documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process.
Id. at 224-25,
Here, the Government has answered the question — “What makes you think that the fugitive committed the offense charged?” — with affidavits from Hermosillo and her husband (Castellanos), from whom the ransom was extorted; authenticated confessions from Rosas and Hurta-do, two co-conspirators to the kidnapping who fingered the petitioner as the mastermind behind the abduction plan; an affidavit from Andrade, who identified the petitioner and Rosas in photographs as the men who approached him approximately one month before the kidnapping to ask if he was interested in “pulling a ‘job’.... to ask ‘Beto’ [Hermosillo’s husband] for two million pesos”; and an affidavit from a prosecutor from Mexico rebutting the allegations of torture. Extradition of Santos,
The extradition court was not simply authorized to admit this evidence; it was obligated to do so under the Treaty. Treaty, art. 10(6)(b) (“The documents which, according to this Article, shall accompany the request for extradition, shall be received in evidence when ... they are certified by the principle diplomatic or consular officer of the United States in Mexico.”). It’s hard to imagine what more the Government would have to submit to satisfy the low threshold of probable cause.
C. Admissibility of Evidence
“The special and limited nature of extradition hearings is manifested in a more lenient standard for admissibility of evidence.” Kin-Hong, 110 F.Sd at 120. The Federal Rules of Criminal Procedure and the Federal Rules of Evidence do not apply in the extradition context. Fed. R. Crim. P. 1(a)(5) (rules are not applicable to the “extradition and rendition of a fugitive”); Fed. R. Evid. 1101(d)(3) (same). Admissibility is instead controlled by § 3190.
[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 thesame, so offered, are authenticated in the manner required.
18 U.S.C. § 3190. Correspondingly, the Treaty provides that documents submitted in support of extradition “shall be received in evidence when ... certified by the principle diplomatic or consular officer of the United States in Mexico.” Treaty, art. 10(6)(b).
Unless the relevant treaty provides otherwise, the only requirement for admitting evidence is that the evidence be authenticated. Manta v. Chertoff,
Until today, we have rejected invitations to impose any additional requirement for admitting documentary evidence in an extradition proceeding. Barapind,
[I]t is undisputed that the evidence presented against Barapind was properly authenticated pursuant to section 3190, and the Treaty itself contains no supplementary authentication requirements. We therefore reject Barapind’s claim that the extradition court erred in relying upon the authenticated documentary evidence submitted by India.
Id. Today, the majority recants these principled statements. The majority now requires that authenticated evidence must also satisfy the Fifth Amendment’s Due Process Clause. Maj. Op. 1003-04. The majority’s rationale conflicts with Supreme Court precedent holding that the right to extradite arises from — and only from — the treaty that created it. Factor,
D. Limited Rights of the Fugitive
Because of the limited purpose of an extradition hearing and the comity owed other nations under an extradition treaty, a fugitive’s ability to present evidence is limited. In Loisel, the Supreme Court held that a fugitive does not have a broad right to present evidence at an extradition hearing.
If [the right to introduce evidence in defense of the charged crime] were recognized as the legal right of the accused in extradition proceedings, it would give him the option of insisting upon a full hearing and trial of his case here; and that might compel the demanding government to produce all its evidence here, both direct and rebutting, in order to meet the defense thus gathered fromevery quarter. The result would be that the foreign government though entitled by the terms of the treaty to the extradition of the accused for the purpose of a trial where the crime was committed, would be compelled to go into a full trial on the merits in a foreign country, under all the disadvantages of such a situation, and could not obtain extradition until after it had procured a conviction of the accused upon a full and substantial trial here. This would be in plain contravention of the intent and meaning of the extradition treaties.
Id. at 316,
For that reason, evidence that “goes to guilt or innocence or tends to contradict the requesting party’s case” — i.e., evidence that would lead to a material dispute over the truthfulness of proffered evidence— has been held to be inadmissible at an extradition hearing. Hooker, 573 F.2d at 1368; Barapind,
While a fugitive may introduce evidence explaining the evidence submitted by the requesting country, Barapind,
The Government offers a useful hypothetical example of “explanatory” evidence:
A requesting country seeks extradition based solely on an eyewitness account of an apparent homicide at a train station. The requesting country proffers an eyewitness account, in which the witness reported standing near the train tracks and seeing two men farther down the train platform arguing with one another, and heard one man threaten to harm the other. As the train approached the platform, the witness turned away from the men for a moment, and when he turned back, he saw the man who had been threatened on the train tracks, where he was immediately struck by the train and killed. The requesting country inferred from the eyewitness account that the second man had pushed the victim onto the train tracks and charged the second man with murder. The accused man located security video footage of the train tracks (the authenticity of which was not disputed by the requesting country) and the video clearly showed that in the moment the witness looked away, the victim jumped onto the train tracks without any contact from the accused.Critically, the introduction of the uncontested security video would require no fact-finding, would not invite weighing of evidence, and would negate the only evidence of probable cause.
Government’s Answering Brief at 34, Santos v. Thomas, No. 12-56506 (9th Cir. Dec. 23, 2013) (emphasis added).
An extradition hearing cannot serve the purpose for which it was created if we require extradition judges to resolve evi-dentiary disputes. We have stated that “[t]he very purpose of extradition treaties is to obviate the necessity of confronting the accused with witnesses against him.” Mainero v. Gregg,
In this case, the petitioner sought to admit self-serving statements by Hurtado and Rosas that recant their prior confessions inculpating the petitioner for kidnapping. The disputed recantations are “contradictory,” as even the majority admits. Maj. Op. 1002. The majority labors to surgically detach the assertions of torture from the recanted assertions contained in the very same documents. Maj. Op. 1002-04. The assertions of torture, the majority contends, are “explanatory” rather than “contradictory” evidence because they suggest that a due process violation has occurred. The characterization is flawed, and the operation a failure, for multiple reasons.
The majority assumes that due process afforded at an extradition proceeding is the same due process afforded at a criminal trial, but this is not true. The Supreme Court has likened an extradition proceeding to a grand jury investigation into the existence of probable cause. See Bingham,
Moreover, the Supreme Court has held that a number of Constitutional rights are not cognizable in extradition hearings. For example, while it violates due process to try a person who is so mentally incompetent that he cannot assist with his defense, the Supreme Court in Charlton held that a fugitive had no right to introduce evidence of insanity at his extradition hearing.
Critically, labeling the proffered evidence as going to the “competence of the government’s evidence” does not, as the majority suggests, magically or otherwise make the evidence “explanatory” rather than “contradictory.” Maj. Op. 1002-03. The litmus test is whether, as a practical matter, the admission of the evidence will result in a mini-trial. Collins,
The majority, perhaps recognizing the impracticality of its approach, attempts to cabin its holding. It states:
Where an extradition court first considers evidence that a statement was improperly obtained, but concludes that it is impossible to determine the credibility of the allegations without exceeding the scope of an extradition court’s limited review, the court has fulfilled its obligation — as the extradition court did in Barapind.
Maj. Op. 1007. This distinction is illusory. Given the Government’s evidence and the torture evidence proffered in this case, how could the extradition court determine the credibility of the evidence of torture without holding a minitrial — in other
Under the guidance of the Supreme Court, courts have attempted to draw a bright line between “explanatory” evidence and “contradictory” evidence. As explained above, the cases and supporting literature indicate that “explanatory” evidence is undisputed evidence that accepts the requesting country’s evidence as true and casts such evidence in an innocent light while simultaneously negating the inference of guilt. See Collins,
Of course the deference that the requesting country enjoys does not mean that an extradition judge must accept unsubstantiated or otherwise insufficient allegations of criminality. Giordenello v. United States,
V. Deference to the Mexican Courts
In extradition proceedings, the responsibility for addressing proffered evidence of torture rests with the requesting country.
Consistent with the determination previously made by the Executive and Legislative branches, we must accept that the Mexican legal system can be relied on to adjudicate the petitioner’s claims fairly. See Spatola v. United States,
VI. Conclusion
“The principles of international law recognize no right to extradition apart from treaty.” Factor,
The record in this case consists of documentary evidence submitted by Mexico that comports with § 3190 and Article 10(6)(b). As such, the evidence meets the competency test and was properly admitted. The evidence established probable cause that the petitioner abducted Hermosillo and her two daughters for ransom in Mexico. When the extradition judge excluded the petitioner’s competing evidence in defense, he did so consistent with his limited role under § 3184. Indeed, this ruling was compelled by the Supreme Court’s longstanding extradition jurisprudence. See Fernandez,
A defendant’s ability to offer evidence in an extradition proceeding is limited to “explanatory” evidence. This is evidence that accepts the requesting country’s evidence as true and casts the requesting country’s evidence in an innocent light, while at the same time negating the inference of guilt. The test for determining whether the proffered evidence is “explanatory” or “contradictory” is whether its admission will re
I am not immune from the “natural anxiety” the majority has in wanting to investigate the allegations of torture raised in this case. Fernandez,
. Hermosillo’s younger daughter died during the course of the kidnapping. Mexico initially charged the petitioner with kidnapping and homicide, but the charge was ultimately reduced to kidnapping alone.
. The Treaty was signed and ratified by President Jimmy Carter with the consent of the Senate, and entered into force on January 25, 1980.
. It appears that the extradition judge also excluded "voluminous additional evidence” offered to "enhance the reliability” of the recantations and allegations of torture and coercion. Extradition of Santos, 795 F.Supp.2d at 988, 990 ("Munoz’s evidence offered to show that the inculpatory statements relied on by the government to establish probable cause were recanted and were procured through torture or coercion is inadmissible and has not been considered in determining probable cause.”). As stated by that court:
The additional evidence includes, but is not limited to: (1) additional declarations by Munoz, Hurtado, and other witnesses who had some connection to Munoz or his co-defendants in the criminal case in Mexico; (2) newspaper articles identifying Hermosillo's husband’s brother as a suspected drug dealer who reportedly attacked Mexican soldiers; (3) copies of reports of forensic medical examinations of Munoz; (4) bank records, hotel records, Western Union records, and similar evidence offered to establish alibi defenses by Munoz or his co-defendants; (5) Mexican court documents showing that an appeals court reversed the kidnapping conviction of Lopez Mendivil, acquitted her, and ordered her immediate release from custody; and (6) reports on human rights practices in Mexico prepared by the U.S. Department of State, Bureau of Democracy, Rights, and Labor.
Id. at 988.
. Curiously, in their initial recantations, both Hurtado and Rosas stated that they were tortured sometime between March 19 and March 22, 2006, the precise time-frame during which they were medically examined. They adjusted this time-line in later amendments to their statements.
. At the extradition hearing, counsel for the petitioner stipulated that all elements, except the element of probable cause, had been satisfied. Id. at 970.
. In Munaf, the Supreme Court noted that "the Solicitor General statefd] that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result.”
. Citing the predecessor statute to 18 U.S.C. §3190, which mandates the admission of a requesting country’s supporting documents if they have been certified through diplomatic channels, the Supreme Court in Bingham explained:
It is one of the objects of § 5170 [today, § 3190] to obviate the necessity of confronting the accused with the witnesses against him; and a construction of this section, or of the treaty, that would require the demanding government to send its citizens to another country to institute legal proceedings, would defeat the whole object of the treaty.
. Although authenticated evidence is admissible, admissibility by itself is not the test for probable cause. In cases where the Government’s evidence has been authenticated and admitted but nevertheless fails to satisfy probable cause, an extradition judge may not certify extradition. This is not one of those cases, however.
. See also In re Extradition of Drayer,
. Lest we lose sight of the quantity of evidence facing the judge in this case, this evidence includes all of the additional volumes of documentary evidence proffered by the petitioner, but not raised on appeal, in supporting the allegations of torture. Extradition of Santos,
. Failure to adhere to this narrow definition could yield unintended results. It is not clear what estoppel or preclusive effect an extradition judge's evidentiary ruling could have in the criminal courts of the requesting country.
. Several courts have concluded that evidence proffered by the extraditing state should be deemed truthful by the extradition judge when assessing probable cause. See In re Extradition of Atta,