Wilmer Yarleque Ordinola v. John Hackman, Acting United States Marshal for the Eastern District of Virginia

Before TRAXLER, WILLIAMS and Circuit Judges, and THOMAS E. JOHNSTON, United States District Judge for the Southern District West Virginia, sitting by designation.

Vacated by published remanded opinion. Judge WILLIAMS wrote the opinion, in which Judge JOHNSTON Judge concurred. TRAXLER wrote a separate concurring opinion. awith Maoist organization guerrilla nized

OPINION to the vio ideology dedicated communist WILLIAMS, Judge. Circuit gov Peru’s democratic lent overthrow Extradition the bilateral Pursuant Sotelo- structure.” and social ernment States the United Treaty between (2d 33, 35 Cir. Slattery, Aquije U.S.-Peru, Treaty, Peru, Extradition see 1994). mid-1980s, By the No 107-6 Treaty Doc. S. July relatively small from grown Path had States United (“Extradition Treaty”), the larger into a much regional movement Wilmer to extradite seeks Government in nu engaged dispersed one more national, to Ordinola, a Peruvian Yarleque Peruvian against of violence acts merous trial for stand can so that he Peru officials, journalists, peasants, homicide, ag- aggravated crimes of teachers, At its others. and professors, disappearance forced kidnapping, gravated characterized Path Shining the was height, in- major intentional inflicting persons, and well-organized,” “[sjophisticated, as Before association. delinquent juries, and vindictive, brutal, and the most “probably claimed, inter judge, Ordinola a in the Western insurgency terrorist elusive because not extraditable alia, he that was (The (J.A. Threat at 138 Hemisphere.” Treaty’s fit within crimes in Peru: Democracy Path to Shining mag- The offenses. for exception on Western Hearing Subcomm. fact, finder of Before as the acting judge, istrate on H. Comm. Hemisphere Affairs of Ordinola’s offenses finding that disagreed, (1992) Cong. 47 Affairs, 102d Foreign pur- for not be defined could (statement Taranzona-Sevilla Gabriela peti- filed a Treaty. Ordinola poses Studies, Davidson Int’l no, Visiting Prof. of corpus, and of habeas a writ tion for Coll.)).) writ, determin- granted district exception ing presi- Peruvian newly elected In Gov- case. The in this barred enlisted Vladimiro Fujimori Alberto dent iden- reasons For the appealed. ernment to the Montesinos, Advisor former Lenin magis- below, conclude we tified Service, as Intelligence National Peruvian finding Ordinola in did not err trate Fujimori Together, military advisor. a dis- vacate the therefore extraditable. We military with provided Montesinos and and remand grant writ trict court’s Shin- fight resources power vast of Extradita- reentry of Certification for a insur- Path,1 group’s ing responding bility. nearly matched gency with tactics result brutality. The Path’s Shining I. military estab- creation of Fujimori’s was A. as “institu- was described lishment by “the worst clouded tionally corrupt,” Guzman, a 1960s, Abimael the late In hemisphere,” in the record rights human and leader professor philosophy Peruvian record persistent “a characterized Party, Peru’s Communist a faction popu- rural action against of indiscriminate left-wing guerrilla the radical founded pop- from “belief stemming Luminoso, lations” as Sendero known movement itself, recipe terror, and of ular has Shining Path Shining Path.” “the (J.A. Shining Path].” [against “highly orga- success as a been described since him and sentenced Guzman convicted cap- courts officials September Peruvian 1. Guzman, acting imprisonment. was still life who Abimael tured The Peruvian Shining leader. Path's as the (The Threat Shining to these four incidents are recounted be- Path Democracy in Peru: Hearing Be- low. on Subcomm. Western Hemi-

fore Comm, The Barrios Altos Case. sphere H. For- Affairs of (1992) eign Affairs, 19, 21 Cong. 102d On evening 3, 1991, of November (statement McCormick, of Gordon H. sen- two trucks containing Colina Group scientist, ior social Corp.)).) RAND agents, Ordinola, including traveled to the neighborhood Lima, Barrios Altos Peru, During in connection with this pollada where a social typically function strategy, Fujimori a special opera- created —a held for fund-raising purposes taking paramilitary squad tions known as the —was place yard apartment of an complex. Colina, Grupo or “Colina Group,” com- Dressed in ski masks carrying ma- missioned the group to combat the guns silencers, chine with Ordinola and Ordinola, Path.2 a veteran of the Peruvian around ten agents trucks, other left the army experience military intelli- apartment entered the complex yard, and gence, assigned to the group and later began shooting at the people attending the chief,” “group became meaning that he pollada. agents people, killed fifteen was coordinator for one of the Colina including eight-year-old boy, and seri- Group’s three subgroups. ously injured four others.3 B. Chiqui Julio Aguirre, a Colina Group Peru’s request alleges that agent who participated attack, in the iden- Ordinola, serving while in the Colina tified Ordinola as an active participant Group, kidnapped and murdered noncom- the shootings and as the killer of the batant civilians on four separate occasions eight-year-old boy. In connection with the in 1991 and 1992. The allegations massacre, related Peru has charged Ordinola with 2000, 2. Toward the Fujimori's end of gov- 1, Mar. 2006. Ordinola has likewise been collapsed ernment significant amidst a politi- charged for his involvement Barrios corruption cal scandal. The addition, Peruvian Con- Altos La and Cantuta massacres. In gress Fujimori declared morally unfit for Montesinos has years’ been sentenced to 20 service; subsequently, imprisonment Fujimori went into ex- for brokering a deal to send 10,000 Japan ile in and tendered assault resignation. guerrillas rifles to Colombian office, Upon taking Toledo, years' imprisonment and 15 Alejandro Fujim- corruption successor, Romero, charges. ori's Simon Briefing directed World his administration investigate Americas: Peru: New Group's Ex-Spy Conviction For the Colina actions in Chief, Times, 23, 2006, Sept. early N.Y. 1990s. at A5. He has been also with various crimes for 2005, Fujimori In Japan traveled from his connection with Group. the Colina Chile to launch his He comeback. shortly was arrested thereafter at the behest 2001, The Inter-American Court of Hu of the Peruvian government, currently and is Peru, Rights man found that which had ac awaiting request Peru's for extradition. See cepted international responsibility for the Tyler Bridges, Fujimo- Massacres could doom massacre, right had violated "the to life em case; legal ri’s death-squad killings Tlie bodied in Article 4 of the American Conven Barrios Altos and La Cantuta are the most Rights” tion on Human respect with charges facing serious President Alberto fifteen right fonner dead and "the to humane treat Fujimori Peru, Herald, back in The Miami ment embodied in Article 5 of the American 9, 2005, Nov. Al. charges at Some of the Rights” Convention on Human respect with against Fujimori are "using for his role in a Case, injured. to the four Barrios Altos Inter- squad death people to kill 25 (Ser. two C) incidents Am (2001), Ct. H.R. No. 75 available known as La Cantuta and Barrios Altos.” http://wwwl .umn.edu/humanrts/iachr/C/ extradition, Fujimori News, Peru seelcs 75-ing.html. BBC Barrientos Case. In- 3. The Homicide, Major Inflicting Aggravated Associa- Delinquent and Injuries, tentional 1992, Army General May Peruvian On and Articles tion, in violation summoned leaders Rivero Lazo Juan Code. Criminal Peruvian meeting Jorge Group to a with the Colina Pineda, owner private property

Fung a military. in the Peruvian who had friends 2.La Cantuta Case. of his agents that some Pineda told the and other July Ordinola On demanding mill were at his cotton workers to La Canta- traveled agents Group Colina machinery. improved wages and higher who were agents, University. The ta to link the work- agents Pineda asked the masks, carrying and armed, wearing ski good and to “teach them ers to terrorism dor- lime,4 student entered the shovels 23.) (J.A. at lesson.” fifteen approximately forced mitories and and other Coli- day, Ordinola Later sin- agents One of outside. students as civil- while dressed Group agents, na be- students of the fifteen out nine gled kidnapped ians, armed themselves connec- terrorist allegedly had they cause workers, taking person one nine of university also forced agents tions. riding bicycle while he was from the road anof his home because professor out Or- from their homes. eight the other link terrorism. killed all nine agents and the dinola other farm. nearby at a buried them people and Group Colina and the other Ordinola left, painted “writ- they agents Before nine stu- professor agents loaded regarding phrases ten marks and drove them trucks and into several dents paint” Path’ red around ‘Shining High- Priale the Ramiro a location on the crimes appear that to make it scene There, dig them agents made the way. Shining Path. by the perpetrated were holes, shot trenches, them into the forced 24.) incident, (J.A. Peru has 9, For this them, them. One and buried killed and Aggravated Homi- with charged Ordinola including later, agents, several days two in viola- Kidnapping, Aggravated cide and bodies, moved Ordinola, the exhumed Peruvi- 152 of the Articles 108 and tion of location, incinerated and them to another an Criminal Code. concerned they were them because For this be discovered.5 might the bodies Case. The Bustamante 4. incident, charged Ordinola has Peru 1992, Yauri Bustamante Homicide, Kid- Pedro Aggravated June Aggravated Huacho, Peru, working and in living of Disappearance Forced napping, and daily program news 108, 152, Articles, of Persons, as director in of violation on a Final,” called, which aired “Punto Code. Peruvian Criminal and 320 were convicted Group officers (CaO), Eight Colina Lime, commonly 5. oxide or calcium 1995, killings. In Cantuta for the La in 1994 graves open of bodies burial used however, re- following Fujimori’s landslide odor of compound suppresses the because congress enacted Peru's victory, election Wikipedia, Calcium decomposing See bodies. military personnel amnesty to all granting law oxide, http://en.wikipedia.org/wiki/Calcium_ human-rights between violations accused of 29, 2006); (last see also Nov. visited oxide 1995, Group including the Colina and Enters., Rice v. Paladin Cantu- role at La for their members convicted 1997) when (noting be used that lime can Cir. Amnesty mili- Speer, J. ta. See Lawrence for prevent odor horrible burying "to bodies Peru, Washington wedge into tary drives decomposition”). Times, at A7. July show, local incident, radio station. On the Busta- charged Peru has Ordinola with mante and his call-in frequently listeners Aggravated Homicide and Aggravated Fujimori government. criticized The Kidnapping, in violation of Articles 108 and Fujimori administration had classified 152 of the Peruvian Criminal Code. Bustamante as subversive activist be- previously

cause he had been investigated C. for terrorist activities. Ordinola entered the United States 22, 1992, Major On June Santiago Mar- February 20, 2001, petition and filed a tin Rivas called members the Colina political asylum on June 2001. On Group, including Ordinola, to a meeting 12, 2003, November pursuant to the bilat- them told day they next eral Treaty Extradition Republic with the carry would operation out an in Huacho. Peru, Department United States On agents, June carry- armed and State four Diplomatic received Notes from shovels, lime, ing masks, and ski left the the Peruvian Embassy requesting that grounds of the former Peruvian Intelli- United States authorities obtain provision- gence Service and traveled in two vehicles al arrest warrants connection with the an area near Major the beach. Rivas extradition Ordinola.6 group directed one of agents stay at the beach dig grave September 24, 2004, sand On a United group directed other kidnap States judge Busta- issued a provision mante bring him back to the al beach. arrest warrant for pending Ordinola 10, 2005, extradition. On June the magis Around 24, 1992, 2:00 a.m. on June trate judge, having previously held ex assigned group broke into Bustamante’s tradition hearing pursuant to 18 U.S.C.A. house, up father, tied him and his confis- (West 2000) § 3184 and the terms of the documents, cated several and forced Bus- Treaty, probable found cause existed into agents’ tamante vehicle. The to believe that Ordinola had committed the agents beach, drove him to the where Ma- Turning crimes. jor interrogated Rivas Bustamante. Bus- whether Ordinola’s crimes were extradita tamante refused to answer ques- Rivas’s ble under Treaty, the magistrate tions they because he knew were going to kill him first found anyway. The crimes group satis forced Busta- mante fied the dual dig criminality to the grave, requirement.7 rest of his and Agent The magistrate Luis Ortiz judge Mantas next fatally shot Bus- concluded that in tamante the head. Ordinola’s alleged The agents then crimes did not fit within buried Bustamante. Agent Aguirre political the identi- exception offense to extradi fied Ordinola as a participant tion. magistrate Busta- judge The that ruled al mante’s abduction and For though murder. this alleged Ordinola’s crimes occurred 26, 2003, 6. Coincidentally, on November the nal punishable and felony as a in both the Department U.S. Security, Homeland Im- country requesting suspect the and the coun- migration, and Customs Enforcement arrest- try surrendering suspect. the See Extradition ed Virginia Ordinola in Northern for immi- U.S.-Peru, 26, 2001, Treaty, July Treaty S. gration (West fraud § under 18 U.S.C.A. 1546 107-6, II, ("Extradition Doc. No art. sec. 1 2000). subsequently pleaded Ordinola guilty ("An Treaty”) offense be shall an extraditable to charges those and was sentenced time punishable offense it is if under the laws in served. Contracting by both deprivation States of lib- erty period for a maximum of more than one 7. The criminality requirement dual ensures year byor penalty.”). a more severe that charged the conduct is considered crimi- treaties, Treaty between the extradition the uprising, political a severe during provides Peru sufficiently States and incidental the United not were crimes exception: not fall within thus did offense political uprising the any polit- that reasoned exception. He if granted be Extradition shall not committing had Ordinola ical intentions request- is offense for which extradition enough to not crimes were offense. ed constitutes light offenses the acts render IV, Treaty, art. sec. Unfor- Extradition committed the fact Ordinola however, do not tunately, these treaties noncombatant civilians against crimes Accordingly, we offense.” “political define the laws in acts violated engaged constructions, judicial rely are forced international standards conflict and armed Department history, purpose, State Accordingly, conduct. of civilized phrase’s interpretations to determine ex- Ordinola’s judge certified Al-Hamdi, meaning. See United States Secretary of State. to the tradition Cir.2004) (“When (4th 20, 2005, peti- filed a July Ordinola On ambiguous or treaty] the text [of corpus habeas for a writ of tion unclear, sources for we turn to nontextual alleging that Virginia, District of Eastern has Although exception guidance.”). Extra- in violation being he held country’s in our ingrained been 21, 2005, the November Treaty. On dition century, this over a Cir- treaties for well writ, concluding granted district expressly addressed cuit never has properly had now, beginning with do so exception. We to believe that Ordi- probable found cause history exception’s explanation crimes but committed the nola purpose. of- that Ordinola’s wrongly concluded had ori- requests are ancient Extradition of- within did fit fenses process was the gin.8 Extradition court concluded exception. fense the surrender requested states which sufficiently inciden- crimes were Ordinola’s offenders, i.e., ac- those “pure” political uprising because tal behav- contemptuous treason and cused of to be- led Ordinola Peruvian Bas- monarch. M. Cherif ior toward crimes of Ordinola’s that the victims lieve Extradition: United International siouni, such, rea- the court As were terrorists. ed.2002). and Practice Law States kill knowingly did not that Ordinola soned repre- known extradition The first — civilians. innocent oldest documents “one of the senting timely appealed. We The Government entered into history” diplomatic —was § 1291 jurisdiction under U.S.C.A. have 1280 B.C. circa Egyptians and Hittites (West 2006). exception Id. at 32. however, re- extradition, a far more II. beginnings tracing its development, cent exception offense political The encapsulated ideals Enlightenment countries from extradit forbids revolutions. and American the French of are accused offenses who ing people peo- a belief supported ideals These in nature. Like “political” that are to resist right an inalienable ple possessed modern-day extradition majority of vast Benjamites re- Testament, guilty men. The tion example, of recounts Old 8. The fused, Benjam- leading was war in who to a which story concubine of Levite Judges died. 20. Benjamites destroyed. until See raped by largely she a band of ites were extradi- demanded of Israel The other tribes See, tyrannical governments. fought against abolish back government their op- e.g., The Declaration of Independence pressors political to secure change. (U.S.1776) (“We para. 1 hold these truths 1843, a decade after Belgi- nations such as to be self-evident.... That any whenever um, France, and Switzerland included the Form of Government becomes destructive political exception offense in their extradi- ends, Right is the of the People these treaties, tion the United States followed ”). to alter or to abolish it.... It was with Bassiouni, suit. supra, at 599-600. these ideals mind that Thomas Jeffer- Traditionally, there have been two son, Secretary of State recom- categories political “pure” offenses: against mended entering into an extradi- “relative.” The “pure” political core of Spain: tion treason, sedition, fenses are and espionage. Codes extend their [M]ost definitions of Benov, v.Vo really treason to acts not against one’s Cir.2006). “Pure” offenses do not country. They do not distinguish be- any have of the elements of a common against acts tween crime solely “[s]uch because laws exist be against Oppressions acts gov- very cause the political entity, state, ernment. The yet latter are virtues: has criminalized such conduct for its self- have furnished more victims to the Exe- preservation.” Bassiouni, supra, at 604. cutioner than the former. Because real Such perpetrated crimes are directly treasons are rare: Oppressions fre- against the state and do not intend to quent. The unsuccessful Struggles cause private injury. Most extradition against Tyranny have been the chief preclude treaties “pure” extradition for po Martyrs of Treason laws in all coun- litical offenses. “Relative” of .... tries [W]e should not wish then to fenses, hand, on the other are common give up to the Executioner the Patriot crimes that are so intertwined with polit fails, who and flees to us. ical act that the offense itself becomes a Letter from Thomas Jefferson to William political one. Id. at 607-08. As evidenced Carmichael (Apr. William Short by discussion, this “pure” while 1792), in 6 The Works of Thomas Jeffer- easy offenses are to identify, determining son 1789-1792), (Correspondence at 447-48 whether a common offense is “relatively” (Paul 1904) ed., Leicester Ford (emphasis political requires close attention spe in original). cific facts at issue. theory underpinning then, exception, is as old as our Most American addressing courts country.9 exception was nec- deemed “relative” political offenses developed have essary protect people those justly who a two-prong test to determine an Arguments sounding exception in the nature, were rights the most sacred and the nations, made in the famous extradition case of Jona- laws of to have recourse to violence than Robbins at the turn of recovery the Nineteenth liberty, of that he which Century. requested The British Robbins’s ex- unjustly deprived.”); had been see also Ex mutiny Kaine, tradition for his role ain (S.D.N.Y.1853) aboard a Parte 14 F. Cas. ship. Although ("It British claimed apprehension Robbins he was the people was impressed time, American into service country, this at the that the offence of the British and seeking to restore his Jonathan Robbins ... was a of- liberty, President unpopu- Adams came to the Assuming apprehension fense .... such to lar founded, conclusion that Robbins should be extra- have well public been the intense Robins, dited. See United indignation States v. 27 F.Cas. that followed was creditable to (D.S.C.1799) ("[Robbins] nation.”). was warranted the Ruiz, U.S. fall within Ornelas sufficiently political to (1896), 689, 40 L.Ed. 787 the Su- S.Ct. “the incidence Known as exception. the explained that the preme Court (1) was a there test,” whether it asks “a presents question offense extradition uprising or political disturbance violent fact, chiefly of mixed and but question law time of the country at the requesting the Court, however, fact.” Id. at 509. of (2) so, the offense, if whether and magis- afforded broad deference to or was incidental alleged offense extraditability, explaining finding trate’s of Vo, See, e.g., uprising. the of furtherance only reviewing to determine it was We, too, adopt the 1241. F.3d at choice, on the “had no whether test as our lodestar. incidence evidence, ... that this was the but to hold ... a revolt a movement aid of III. contained all the char- and that acts which ordinary under the acteristics of crimes 3184, mag- § to 18 Pursuant U.S.C.A. extradition because exempt law were from to review the jurisdiction has judge istrate com- of those who of the intention an extradi- to determine whether evidence Id. at 16 S.Ct. 689 mitted them.” under a trea- can be sustained request tion added). (emphasis If determines ty.10 the language brings to extraditable, This “no choice” then must suspect is the or clear er- mind the substantial evidence Secretary of the certify the to by today. courts employed standard the ultimate ror State, with who is entrusted deciding under the sub- example, For determining extradi- of power executive 2000). (West re- evidence standard § stantial 18 U.S.C.A. tion. agency’s decision immigration the Thus, place, can take verse extradition before decision uphold the exist, deny asylum,11we will and the sus- treaty must applicable the can show petitioner unless the challenge application able to pect must be “com- would have presented he and executive evidence judicial treaty the both of factfinder to conclude reasonable pelled” a review. same, together copy 2000) certify (West provides: he shall § 3184 18 U.S.C.A. 10. him, to the testimony before taken of all treaty convention for there is a or Whenever State, may issue Secretary a warrant of any United States between the proper authorities upon requisition any justice or foreign government, ... foreign government, for the surrender of such States, any magistrate judge or the United stipulations according person, such by a of the United to do authorized so convention; he shall issue treaty of the or States, record of any judge of a court of or person his warrant for commitment State, may, upon any general jurisdiction of proper jail, there to remain so oath, any charging complaint made under made. be until such surrender shall jurisdiction, with person found within his jurisdiction of having within committed asylum, in- Although opposites, which 11. any individual, foreign government any such extra- request of an volves state, treaty provided dition, or conven- request such crimes involves which tion, apprehen- generally warrant for the ... issue his See historically have been linked. Bassiouni, may charged, be person that he Extradi- so International sion of M. Cherif magis- judge, Practice 153-82 justice, or Law and brought before such tion: United States said, (4th ed.2002). trate, "extradition and of criminal- That evidence to the end that the related, If, asylum proceedings on are ity may and considered.... be heard authority extradition re- which legislative evidence suffi- hearing, he such deems asylum.” Id. from that charge provi- lies is different under the cient to sustain convention, proper sions 598 See, e.g.,

otherwise. I.N.S. v. Elias-Zaca err and that there exists a close nexus rias, 478, 483-84, 812, 112 502 U.S. S.Ct. between Ordinola’s alleged actions and his (1992). 117 38 L.Ed.2d Ornelas’s standard political objective. agree in principle We nicely of review also meshes lan with the Government. 3184, §

guage of which instructs the fact- charge finder to sustain the under the A. provisions treaty of the if “he deems the § evidence sufficient.” 18 U.S.C.A. 3184. There is no appeal direct for an individual found be by extraditable a Thus, we are left with a standard magistrate. Miller, See Collins v. 252 recognizes of review that of 364, 369, 347, U.S. 40 S.Ct. 64 L.Ed. 616 question question fense as a mixed of law (1920). Rather, a writ of habeas corpus is fact, Ornelas, mostly but of fact. 161 only challenge available means to 509, U.S. at 16 S.Ct. 689. On habeas magistrate’s finding. A conducting review, grant magistrate’s we must fac habeas review of an extradition case is tual findings great deference and affirm subject to substantial limitations and is not the decision it “palpably unless is errone free “to rehear what magistrate has ous law” and a reasonable factfinder already decided.” Fernandez v. Phillips, would have had “no choice” but to conclude 311, 312, 268 U.S. 45 S.Ct. 69 L.Ed. acting offender was in furtherance (1925). magistrate’s decision of a political uprising. 509, 511, Id. at therefore “cannot be reviewed on the S.Ct. 689.

weight Ornelas, of the evidence.” TV. U.S. 16 S.Ct. 689. cor “[HJabeas pus only is inquire available whether the argues Government that the district jurisdiction, had whether the court failed to afford charged and, offense within the judge’s opinion proper deference and that by a extension, somewhat liberal it misapplied exception offense any there was evidence warranting because Ordinola’s offenses were not inci- finding that there ground dent to the was reasonable uprising in Peru.12 It to believe the stand, guilty” contends that if accused allowed to the assert opin- Fernandez, ion ed crimes. would extend the narrow doctrine “to 268 U.S. at virtually every misdeed, review, S.Ct. 541. no matter how Under po habeas “the heinous, by person committed litical purporting question offense is reviewable ... as to act a political part under cloak.” (Appel- of the of whether the offense 29.) Ordinola, lant’s Br. at on the other treaty.” Quinn is within the hand, argues Robinson, that the district Cir.1986). did not argument note, There also however, exists colorable parties. We although exception applies only fighting to those strong such a limitation support finds government oppression, rule, and therefore history original not to purpose no government actors. See In the Matter such limitation plain can be inferred from the Requested Suarez-Mason, Extradition language Treaty. We further note that (N.D.Cal.1988) F.Supp. (concluding warfare, age guerrilla in this where differ- principles underlying "the ent factions often pockets control individual exception are extending war, ill-served country of a in the midst of a civil protection its to former might beyond offi- judiciary’s be competency cials”). The expressly Government declined to determine govern- whether the nominal argument, to make this and we party will not do so ruling ment party any in fact the sponte sua argument in the absence particular of full situs. mination.”). Thus, although the district then, matter, the dis an initial

As reviewing legal de con- in to make its own erred court was free plainly trict court judge’s magistrate entirety of the they supported the were long novo so clusions findings his factual affording decision findings, factual magistrate judge’s the examples, many For one of no deference. ignore misinterpret was not free that “Ordinola finding court’s the district in an effort to reach de- findings those civil innocent knowingly murder did not legal conclusion. sired (J.A. 528), by the ians,” is contradicted at finding that opposite judge’s magistrate B. clearly civilians.” “were victims Ordinola’s political fall within To 31.) (J.A. example, As another at alleged actions must exception, Ordinola’s boy young found that judge

magistrate in of to or furtherance have been incidental “as he was by Ordinola murdered allegedly in Peru. Al uprising political a violent al father was dying running help occurred Ordinola’s actions though (J.A. at not a terrorist.” certainly most uprising, he of a violent course however, 31.) court, rejected district judge magistrate cannot show of its because finding as “irrelevant” this those actions finding in were erred finding that “several factual independent uprising. quelling in furtherance not of themselves Path members Shining of the partici matter, magis- adolescence before barely reached initial we—like As an (cid:127) and bru insurgency’s in violent pating district court—have little trate 527.) (J.A. at tal tactics.” actions in agreeing trouble of a during the course vio- here occurred rejection magistrate Such gov- The Peruvian uprising. lent improper because factfinding was judge’s Path were en- ernment and to “to re free not the district struggle for control gaged in a violent already de has hear what expert’s According to one country. Fernandez, at 268 U.S. cided.” 1992, “[approxi- in court, opinion of the situation Rather, as a habeas 541. S.Ct. territory by the same of Peruvian mately percent court was constrained district is articulated review that percent coun- approximately standard Be this Court. above for the discussion under state try’s population [was] was the factfin- magistrate judge (J.A. cause the (The at 108 emergency.” national subject not its decision was der and Democracy Shining Path to Threat court erred the district appeal, direct Subcomm. Hearing in Peru: Before to the paying substantial deference H. Hemisphere on Western Affairs of See, findings. judge’s factual Comm, Affairs, Cong. 102d Foreign (explaining Quinn, 783 at e.g., (statement (1992) H. of Gordon McCor- us to make sense for would little that “[i]t scientist, RAND mick, social senior judicial findings the factual ignore then, appropriate Clearly, it is Corp.)).) deter the initial factual that made tribunal at the Peru time the situation describe instead, defer, differ to the minations as “a alleged actions of Ordinola’s tri by a findings [later] ing made factual insurrection, civil revolt, or a war.” the record merely reviewed bunal Ornelas, 16 S.Ct. 161 U.S. Wilkes, Eain v. proceedings”); the earlier is whether difficult The more Cir.1981) (“The 504, 508 were incident alleged offenses Ordinola’s corpus extradi of habeas review scope First, recog- we uprising. to the one, due according a limited tion cases is to ask little sense nize that it makes initial deter- magistrate’s deference whether his actions were perpetrated furtherance of with bona fide or rev- or “in uprising. aid” of the See id. Ordi- olutionary designs”). We read these cases nola, acting gov- on behalf of the Peruvian to mean that for a claimant to come within ernment, defeat, aid, attempting to was not protections of political offense ex- uprising. Accordingly, slight- we must ception, necessary, sufficient, it is but not ly question alter and instead ask for the claimant to show that he was politi- whether Ordinola’s actions were incident cally words, motivated. other a claim- to or in furtherance of quelling the violent ant whose common subjec- crime was not uprising. tively politically motivated cannot come parties disagree over the exception regardless extent to within the of whether subjective objective. which this test or the offense itself could be described as an court, example, The district focused objectively “political” one.13 fenses, political uprising, or a dispute between two See, e.g., In must at least be shown that the act is done in furtherance jectively, although motives in long recognized usually carry course itself, uprising via his actions. at take to focus on the The Government contends that it is a mis- the attacks and of the accused. argues, courts must concentrate on the act part innocence of the civilians” at the time of Ordinola had no assistance, (1890) on its as the not We conclude that courts must look then, cannot acting independent politically (Opinion of re Castioni aas Treaty more of, thus intended to both subjectively and ob “knowledge Instead, in a political done with the intention sort of relevancy weight. intentions, motives, exempts political of- motivated offenders. objective factual ^[1891] Denman, (J.A. offense context. the Government overt regarding the Courts have of finding at view must matter, act in subjective Q.B. 149, quell 526-27.) J.) (“It a motivated.”). motivation does into a political character no matter how Cir.1980) (“An offense motivation does not turn action. tion can was ture of the offense and the motives of the exempts political offenses, actor”). This is United appreciate the distinction between the na- siouni, supra, at 602 (explaining that a test claimant must also show that the offense Aside from the victim— proffer into a objectively focuses States, See, simply political be read to simply a e.g., Ahmad v. Wigen, 910 solely unjustifiable political. not convert because the because it offense.”); (2d Cir.1990) (“Political subjective offense. The Treaty, because the on motives “fails to is not of a protect rationale for the every See, was and no matter component, a Escobedo v. Treaty every every act— a political illegal ac- politically e.g., Bas- suspect crime itself (5th Here, parties in we the State assume without deciding as to which is to have government Ordinola’s its hands.” actions were (emphasis politically motivat- added)); Ornelas, at ed. U.S. 16 S.Ct. judge did not explicit- (inquiring ly acts “were address question; instead, he fo- By way example, hostage large consider a containing into a vault valuables housed hostage situation where the Thus, takers demand building the same hostages. as the the release from prison revolutionary although their the offense could be viewed as ob- leader as the condition for the jectively political, release of the only the offenders have a hostages. But this demand is in fact a monetary ruse to motive and therefore could not take distract hostage nego- and its advantage of the exception. tiators. The true hostage interest of the tak- For a example, cinematic variation of this see buying ers is they 1988). time so that Century can break Die Hard Fox men, on crowd of Group “opened [a] fire inquiry. objective side on the .cused (J.A. 19.) women, at He hand, children.” court, ap- the other The district and other Colina on its also noted Ordinola grant its writ peared to base Group agents group made students that Ordinola conclusion independent holes, trenches, reason to forced them into the “dig We see no motivated. politically because, ex- inquiry gunfire, killed them with buried this delve into 20-21.) (J.A. Likewise, below, we conclude that Ordinola masked them.” plained are offenses that news agents kidnapped director Treaty. dig grave, forced him to program, under the by shooting him him in head. killed his particular whether a determine To that Finally, magistrate judge found the Treaty, the we under offense is on of á friend of agents the acted behalf totality of the circum must look by his military perturbed the was —who stances, as the focusing particulars on such higher wages by for workers’ demands — identity of the attack and the mode of the and kidnapping murdering and the men Ornelas, victims, In the Su example. for decorating Shining the scene with then extradi examined Mexico’s preme. Court appear it symbols Path to make of of for a member a band request tion Path. Shining had fallen victim to the men and killed who attacked armed men not favor mode these attacks does The of and civilians. Mexican soldiers group of indis- They suggest level of Ordinola. of a part that he was claimed Ornelas criminate, on sus- killing clandestine based that and revolutionary movement border favors, as pect intelligence that in furtherance of actions were his cover-ups attempt- that subsequent well as 510-11, Ornelas, 161 U.S. movement. at destroy murders and to conceal the ed pos procedural In a similar 16 S.Ct. 689. See, e.g., Matter Extradition evidence. case, deter the ture to this Marzook, F.Supp. were not of a mined that the acts (S.D.N.Y.1996) (rejecting political character, disagreed district court but the killings of indiscriminate exception because the reviewing In Gov review. habeas “crimes approach that abhor- of civilians Supreme the Court appeal, ernment’s nature”). rent to human “no magistrate had queried evidence, hold, choice, in view looking but to on the when fares no better Ordinola foray, Ornelas, mode of of the at character 161 U.S. persons killed.” “the attack, captured, killed or persons at of the victims 16 S.Ct. 689. None destroyed,” or property kind of taken of at- at the here armed time issue were political. were Id. that offenses hostility Ornelas’s any engaging overt tack or answering In that at 16 S.Ct. government. the Peruvian toward negative, Supreme accordingly found magistrate judge alia, that, it relevant inter found Court clearly civil- were in this case “the victims of some citizens” were the victims “private ians, those who were assaults, tak property was private connections, evidence have terrorist en, of a part was bandit and Ornelas (J.A. at best.” such tenuous connections flag.” without “uniforms group, acting 31.) finding, at In so 510,16 Id. at S.Ct. 689. noted, alia, boy little who inter dying running to aid killed while modes examining Group’s Colina certainly not terror- almost father “was attack, magistrate judge noted likely said ist, can most same be role in being charged for his Ordinola was 31.) (J.A. at partygoers.” the other for people when the Colina killing fifteen 564, 574, magistrate judge also found that the 105 S.Ct. 84 L.Ed.2d 518 (1985) factory targeted were not because (holding reviewing may workers that a terrorists, they plausible were but “because their not reverse a account of the evi- against though wanted to retaliate them for dence “even boss convinced that had it demanding working fact, better sitting conditions.” been as the trier of it would (J.A. 31.) weighed differently”), at have the evidence Ordinola instead contends that the civilian Recognizing exceeding difficulty status of the victims especially is not rele- attacking sufficiency of the evidence vant this instance.14 disagree. We supporting magistrate judge’s findings not active Quinn the victims were members Ordinola on language relies from Ornelas, Path, Robinson,15 see 161 U.S. where the Ninth Circuit (“It if enough justification 16 S.Ct. 689 concluded that “there is no appear[s] legal that there was distinguishing evidence on ... between attacks on mili- [magistrate judge] might which the prop- tary targets.” Quinn, and civilian erly conclude that the had accused com- F.2d at 810. In support of this “non- contention, mitted offenses within the judgmental” the court noted its ” added)); .... (emphasis revolutionaries, view that is for the “[i]t cf. Bessemer, City courts, Anderson v. 470 U.S. not the to determine what tactics Robinson, 776, suggested (9th Cir.1986). 14. The district court that it could 783 F.2d 781 Circuit, not examine the status of the victims because splintered opinion The Ninth a upon “to do so would intrude the internal panel with all three writing, members of the (J.A. 528.) course, affairs of Peru.” at Of this political exception concluded that the offense begs questions the unanswered of how and apply. Judge opin did not Reinhardt’s lead why. (the ultimately ion concluded that London site suggested district further crimes) ongoing was not the situs of an exception apply government must to actors dicta, however, Judge In rebellion. Rein “seeking protect legal to op- their order as hardt described a "liberal” test to decide posed protecting organization’s a to terrorist closely whether the criminal action was con attempts govern- violent to overthrow the nected political or in furtherance of the move (J.A. 522.) ment.” at This distinction is non- Quinn, ment. Judge 783 F.2d at 809. sensical. There is no reason to assume that issue, Fletcher dissented on the situs but First, mutually the two are exclusive. one joined Judge interpretation Reinhardt's political could decide that excep- offense Judge Duniway incidence test. concurred in apply tion does not to "terrorists” while at holding, rejected Judge situs but Rein deciding apply same time that it does not to Quinn majority hardt’s dicta. The saw no seeking protect legal actors to justification for a "strict nexus standard” be order, Second, govern- or vice versa. when view, uprising’ cause in its it was "the com "protect legal ment actors their order” ponent plays key that ensuring role in means, through legal there can be no extradi- protects only the incidence test those activi only proper tion. Extradition is for acts that political ties that the are offense Regardless, criminalized in both nations. doctrine was assuage protect- designed protect.” the district court’s fears of Id. at 809. We terrorists, ing Treaty we disagree note that the focusing intently itself because so on the terrorism, provides that "offenses related to presence uprising push of an will courts dan as set forth in multilateral international gerously protecting close to "isolated acts of agreements Contracting to which both States personal social violence undertaken for rea parties” are shall not be considered to be simply they during sons because occurred Treaty, offenses. Extradition art. political upheaval, a time of a result we think IV, sec. 2. exception offense was not meant Wilkes, produce.” Eain v. 641 F.2d Quinn 15. a Republi was member of the Irish 1981). Cir. Army sought can whom Great Britain to ex Quinn bombings. tradite for murder and v. ians,” Wigen, F.Supp. bringing Ahmad chances further their may help (E.D.N.Y.1989), aff'd, 910 F.2d 1063 Id. government.” changing the down (2d Cir.1990), argument, at oral Gov con- disagree with this respectfully We informed us that the de ernment counsel in fact there are and hold clusion generally continues to adhere partment distinguishing be- justifications sound that view. governmental civilian and tween —or case, Third, has revolutionary targets. the status of the victims been this — course, inception justification, important an factor since first See, that the civilian e.g., has held exception. Court offense Supreme (“In killed” is relevant. “persons Ahmad, finding no F.Supp. status of at 404 Ornelas, at 16 S.Ct. 161 U.S. Ninth targets, the Cir- distinction between Moreover, Seventh the Second and both the fact that the civilian status ignored cuit have addressed Circuits significant has been a factor of victims do, concluded, the status like we have since the nine- political offense calculus Ahmad, relevant.16 See the victims is fact, aside century.”). from teenth (holding that attack at 1066 910 F.2d caselaw, can no oth- Circuit we find Ninth civilians full of bus innocent commercial ci- authority stating that the American er despite the exis- was not victims is irrelevant. Rath- vilian status of Eain, motivation); of a tence er, stand precedents and authorities indiscrimi- (holding that “the at 521 See, e.g., firmly opposite on the front. is not populace bombing of a civilian nate 689; Ornelas, at 161 U.S. S.Ct. act”). protected political recognized as Eain, Ahmad, 1066; 641 F.2d 520-21; Garcia-Mora, R. at Manuel Second, that we must remembered it be Humanity and the Prin- Against Crimes Treaty to define the interpreting the are Political ciple Nonextradition so, we doing “political offense.” term Of- of of (1964) Mich. L.Rev. 944 fenders, 62 meaning to “great weight” afford the must (“[T]he con- hostilities are means which provision by the the State to attributed legitimately connected ducted be must enforc as it is Department, with politi- as Am., characterized with the war to be Treaty. Shoji Sumitomo ing the that the 184-85, scarcely be denied cal. It can Avagliano, 457 U.S. Inc. v. the con- during (1982); of atrocities commission L.Ed.2d 765 see 72 102 S.Ct. belligerent oc- during Al-Hamdi, duct of hostilities (granting F.3d at 570 also furthering no connection cupation has the State De deference” to “substantial State.”); Ste- legitimate policy of the provisions interpretation partment’s Czackes, Role Convention). Lubet Morris De ven & The State the Vienna Judiciary in the Extradi- the the American expressed previously has partment Terrorists, L. 71 J. Crim Political tion exception offense political that “the view (“[A]n (1980) of- Criminology on civil- & to violent attacks applicable not extradition, po- even exception to if argued Recently, Judge Rymer in dissent propri- litically Nor should panel of the Ninth Circuit motivated. an en banc Quinn committing be to ety follow common crimes left overrule "instead should Supreme And civilians perpetrators' articulated discretion. approach Enomoto, Overruling Barapind military. in Ornelas." are different from Court Cir.2005) (en banc) (Rym- Quinn cir- realign us with the two would F.3d er, J., Rymer explained: dissenting). Judge attacks non- that have addressed cuits targets Quinn, and held them civilian combatant because we overrule I believe must unprotected. be against innocent violence indiscriminate persuasive. dissent We find her political Id. at 756. qualify for the persons should not having impact upon citizenry, recognizing terror, fense its err for terror’s directly upon government, sake, does but a quell- was not sufficient method of not fall offense excep- within ing uprising. Path’s id. Cf tion”). (“The exception does not make cold-blooded murder of civilians incidental Fourth, by refusing to examine the purpose to a a toppling government, attack, attack, the mode of the scope of the absent a direct link perpetra- between the attack, and the victims the Ninth tor, a political organization’s political goals, defining results in approach Circuit’s act.”); specific Czackes, and the Lubet & any political offense as common crime that (“An supra, at 202 offense which is intend- during uprising long occurs so only order, ed disrupt the social but not claims a as the accused motive to maintain government, or alter the is not uprising. explained connected As political.”). above, reject subjective we must such a Eain, (ex- test. See also C. plaining danger abusing Finally, parties both protect suggest that we “simply criminals because [their make inferences based on the during crimes] occurred a time of motives of upheaval”). requesting government. example, For Ordinola contends that “a government new Accordingly, magistrate judge’s rea- seeks punish as [him a] of a member[ ] finding sonable alleged Ordinola’s of- former for [his] conduct in against fenses were carried out innocent suppressing a uprising.” violent (Appel- largely civilians argu- dooms Ordinola’s 29.) Government, lant’s Br. at for its finding ment. Because that legiti- part, points out that this is not a “new made, mately simply cannot be said that government” comprised of the revolution- judge had no choice but to aries Ordinola fought; rather, once it is define Ordinola’s actions politi- democratically same govern- elected cal offenses.17 To have been considered ment —albeit a different administration— offenses, Ordinola’s actions would requests Ordinola’s extradition. Al- had to way proportional have been some though the interpretation Government’s is to or in quelling Shining furtherance of the facts, correct on the the motives Path’s rebellion. See id. at 521 (noting requesting government “legitimacy that the are of a cause in irrelevant to does not our legitimize Treaty itself decision. The the use of certain states that forms of ex- especially violence tradition against the innocent” will be denied “if the executive (internal quotation authority marks and alteration Requested the State deter- omitted)). magistrate judge did not request mines that the politically moti- holding, magistrate As an alternative the argument. for both sides of Compare judge assuming arguendo found that "even Artukovic, United States ex rel 170 Karadzole that the victims had more demonstrable ties (S.D.Cal.1959) F.Supp. (finding 392 Path, to alleged Mr. Ordinola’s exception applies offense and re- actions still fail to fall within the jecting necessity any inquiry into exception, they violate the laws of accused’s actions constituted "so- (J.A. 31.) armed conflict.” at Ordinola ar- crimes”), Wigen, called war with Ahmad v. gues that this was clear error. Because we (E.D.N.Y.1989) F.Supp. (holding hold that the did not err in that an action cannot be defined as a not, not, primary its holding, we need and do offense if "violate[s] the Law of Armed reach the holding. merits of its alternative Conflict”). note, however, We support that there exists IV, say cannot simply sec. Treaty, art. Extradition vated.” added). into the Any question judge had “no choice” but to find that the (emphasis is motivations government’s Peruvian is common crimes Ordinola legiti- beyond this Court’s therefore well against committed noncombatant ci- have Treaty authority under the mate realm vilians were offenses under solely to the Secre- and must be addressed Treaty with Peru. therefore must va- We Earn, See 641 F.2d tary of State.18 writ, grant cate the district court’s (“It within the rule that it is is the settled reentry of a Certification and remand for to de- sole discretion Secretary of State’s note, however, Extraditability. We country’s requisi- not a whether or termine only re- judicial review is not a view to is made with tion for extradition Ordinola, as he is free course available fugitive for a try punish or to contest his extradition before the Unit- ie., crime, is a subter- request whether the Secretary ed States of State. Kin-Hong, States v. United fuge.”); cf. AND VACATED REMANDED. Cir.1997) (“[I]t (1st about what awaits the questions not that country are irrel- requesting

relator TRAXLER, Judge, concurring: Circuit extradition; it is that there evant to magistrate judge I cor- agree which has government, another branch rectly pursuant certified 18 U.S.C.A. discretion say greater final both (West Supp.2006) § that Ordinola ques- whom these proceedings, these may be surrendered to Peru under addressed.”). properly tions are more Treaty Extradition between terms of the V. I Accordingly, the United States and Peru. majori- reached concur the result above, the dis- For the reasons outlined vacating grant of habeas ty opinion granting Ordinola’s trict court erred directing court and relief the district corpus. for a writ of habeas petition reentry of certification of extraditabili- under habeas affording proper deference decision, I would follow different ty. we Because magistrate’s review Jay Epstein, argument change in Russia. See Edward plausible policy exists a 18. There War, Magazine, Sep. government Spy N.Y. Times former offi- that extradition of (chronicling spies). one of denied in cases at 34 such If should as a rule not be cials States, this, government spies it is the same to the United like when those fled prosecution. requesting the former official for with treason him Soviet argument, gov- such an which We cannot endorse sought extradition as former Treaty support the text of the finds no judicia- employee, the United States ernment Moreover, history exception. if of the certify required him to the ry would be sure, our treaties anything is for it is that Secretary under the State as extraditable extradition of someone forbid the above. Aside from fact noted rule offenses, as pure political such treason. plain theory support lan- finds no this abandoning judi- justification for There is no appli- Treaty historical guage or in the long-standing rule in of that cial enforcement exception, cation of the simply treason was cases because the certain hypotheti- above result reached in the absurd by government official a former committed proposed enough to condemn the cal is alone change. seeking regime 160, Johnson, 440 F.3d Walton v. rule. See J., banc) (Williams, (4th Cir.2006) (en Consider, 181 example, Soviet for good rea- concurring) (explaining that there is with com- who became disenchanted officials reject "test founders in a test when the son to ideology during War and the Cold munist before hypothetical that could come a case to the sought provide information classified court”). instituting regime United States as a means of 606 however, I write

analytical approach, sepa- interposes to the extent that the statute a rately. judicial Hood, Lopez-Smith function.” v. (9th Cir.1997). 1322, 1326 121 F.3d

I. Still, judiciary plays a limited role Judiciary’s Limited Role in Interna- process, pre the overall extradition tional Cases Extradition by Congress scribed in the Extradition (West §§ Act. See 18 U.S.C.A. 3181-3186 by is “the surrender one Extradition Sidali, Supp.2006); 2000 & see 107 F.3d at of an individual nation to another accused (“[T]he judiciary greater 194 has no role an or convicted of offense outside of its Constitution, than by that mandated territory, and within the territorial own (in granted judiciary by Congress.” [nation], jurisdiction the other which ... omitted)). quotation ternal marks The es surrender.” Terlinden v. demands the sential function served an extradition 289, Ames, 270, 484, 22 46 184 U.S. S.Ct. court under the statute is “to (1902). determin[e] There is no general L.Ed. 534 extradited,” eligibility an individual’s to be law, however, duty under international meaning that the court must “ascertain[ ] sovereign a nation to surrender an accused crime is extraditable under the fugitive upon demand. See Factor v. Lau benheimer, 276, relevant 287, 191, probable and whether 290 54 U.S. S.Ct. (1933). cause exists to right charge.” sustain the v. 78 L.Ed. 315 of one Vo Benov, 1235, Cir.), 447 F.3d 1245 sovereign to demand that another sover cert. — denied, arises, —, 317, eign an accused U.S. 127 extradite criminal S.Ct. 166 (2006). all, thus, treaty; if duty primary no to surren L.Ed.2d 238 A purpose of alleged fugitive an to a foreign govern der the extradition statute to “interpos[e] apart ment from an judiciary exists extradition trea between the executive and id.; ty. individual,” See see also United States v. Healey, Austin v. 5 F.3d Alvarez-Machain, 655, 664, (2d 598, 112 Cir.1993), U.S. provide as well as (1992) (“Ex S.Ct. 119 L.Ed.2d “independent means of review” of execu tradition treaties impose exist so as to Martin, tive action. 993 F.2d at 828. The obligations mutual to surrender individuals statutory inquiry court’s is sim circumstances, in certain defined sets of ply “preliminary examination to deter following procedures.”). established mine whether a case is made out which will justify holding of the accused and

Because extradition is a creature of surrender to the demanding nation.” Lo treaty, power “the to extradite derives States, Duca v. United 93 F.3d power from the President’s to conduct for- (2d Cir.1996) (internal quotation marks INS, eign affairs.” Sidali omitted). Const, Therefore, “judicial officer (3d Cir.1997); II, see art. U.S. hearing who conducts an extradition Extradition, therefore, § cl. 2. is an performs assignment in line with his or judicial executive function rather than a her accustomed task of if determining See, Warden, e.g., one. Martin v. probable there is cause to hold a defendant (11th Cir.1993). It involves to answer for the commission of an of a “diplomatic process out through carried (internal fense.” quotation Id. executive, marks powers judi- not the omitted); McMullen, cial, In re 989 F.2d branch.” v. Blaxland Commonwealth cf. 603, (2d Cir.1993) (en banc) (“What Prosecutions, 611 Dir. Pub. 323 F.3d is (9th Cir.2003). 1207 at issue in the proceeding pun- The decision to extra- is not (internal dite ishability is one that “entirely prosecutability.” is within the but branch, omitted)). discretion of the except quotation Thus, executive marks there is

607 requesting country are irrelevant to the extradition from appeal direct no extradition; is that an individual it is that there is another determination court’s habeas subject not to extradition fi- government, or is branch of which has both only means of review. provides the corpus say greater nal discretion these Wilkes, 508-09 Eain v. See questions to proceedings, whom these are (7th Cir.1981). addressed.”). Likewise, properly more branch, question is a for the executive to sur-

Ultimately, the decision courts, requesting whether the nation eligible for extradi- found person render in its demand for is sincere extradition discretionary one commit- tion remains a merely using process is as a subter- judiciary ted to the executive branch. an fuge revenge against opponent to exact to order the extradition power has no Eain, 641 F.2d at government. See fugitive. After the extradition then, non-inquiry, rule of inquiry, its limited 513. The completes State, executive, through Secretary comity by interests of international “serves discretionary decision whether ex- relegating makes a to actors the sensitive tradition, permissible under the although foreign policy judgments that are often statute, based on “factors appropriate is involved of whether re- individual defendant as affecting Hoxha, both the request.” fuse an extradition deciding wheth- foreign well as relations F.3d at 563. v. appropriate.” is Hoxha er extradition posture Courts also assume deferential Cir.2006) (in- (3d 465 F.3d

Levi determining it comes to the exis- when omitted). quotation marks ternal validity of an extradi- continuing tence or In addition to the limits established ques- grounds on the such tion statute, developed have vari- federal courts essentially political. See id. at tions are “ensure, self-limiting principles that ous accord the executive branch’s 562. Courts judicial things, inqui- among other treaty “great weight,” of a construction unnecessarily impinge upon ry does not 110, largely be- Kin-Hong, 110 F.3d prerogative expertise.” executive branch wrote and ne- cause the executive Kin-Hong, 110 F.3d States v. United being interpreted, document gotiated the (1st Cir.1997). judicially-creat- These Howard, 1320, 1330 n. 6 In re 996 F.2d see courts within keep ed doctrines extradition Cir.1993). (1st judicial inquiry limited the bounds of the sum, it be a federal courts—whether as a barrier to the set statute and serve the extradition magistrate judge serving as judiciary’s through role expansion of the sitting in court or a district habe- habeas review. resolving single is- as—are tasked with doctrine, limiting example, for One such fugitive appear purported sue—does the pursuant non-inquiry, rule of is the extradition under the rele- eligible be into and delving refrain from which courts treaty? vant request- assessing competence Proceedings under U.S.C. Extradition justice. system of See ing government’s § sm Questions proce- at 110-11. about id. gen- in the United States Extradition sovereign’s jus- of another dural fairness by the submission of erally initiated to- or whether the individual system tice foreign govern- request from a inhumane treatment be-surrendered faces Department of States ment the United purview of the executive are within treaty. State, (“It pursuant to the relevant not that id. at branch. See Reno, Barapind relator in See what awaits the questions about 608

(9th Cir.2000). request general- This must been a of one or more of the violation ly supported by sufficient evidence to “be extraditing country.” criminal laws of the person the individual is the show 1247, Hylton, 542 F.2d 1249 Peroff v. charged, crimes sought for the (“It Cir.1976); Eain, see 641 F.2d at 508 is among crimes are those listed as extradita- person fundamental that the whose extra Treaty ble offenses and that there is sought dition is is not entitled to a full trial justification for the sufficient individual’s magistrate’s probable at the cause hear arrest had the crime com- been ing. That is the task of the ... courts Eain, mitted the United States.” 641 country.”). of the other at Department F.2d 508. The State Although the extradition statute does makes an initial to determine evaluation “probable not mention cause” and instead request scope whether the falls within the directs the extradition court to determine Vo, 1237, treaty, see 447 F.3d at whether there is “evidence sufficient to appro- turns the matter over to the then charge provisions sustain the under the Attorney priate filing United States for the convention,” proper or 18 complaint seeking of a a certificate of ex- 3184, § uniformly U.S.C.A. courts have in- § tradition under 18 U.S.C.A. see Eain, terpreted statutory language to re- 641 F.2d at 508. quire a finding “probable cause.” See point, Attorney From that the U.S. es Vo, 1237; Sidali, 447 F.3d at 107 at F.3d sentially represents foreign govern Thus, probable “[t]he cause standard seeking ment return of the alleged fugitive to applicable hearing an extradition is the litigation. all extradition The statute pre- same as the standard used in federal Attorney directs the U.S. submit the liminary hearings,” meaning that mag- complaint an arrest warrant “under officer, i.e., “any judge’s merely oath” to an extradition istrate role is “to determine justice States, or judge of the United competent there is evidence to any magistrate ... by authorized a court justify holding the accused await trial.” the United States.” 18 U.S.C.A. (internal Hoxha, 465 at quotation F.3d § 3184. In practice, generally this is omitted). vein, marks In that the evidence magistrate judge who holds a limited considered part of an (1) “hearing to determine whether hearing “need not meet (2) extraditable; crime is there is admissibility standards for at trial” and probable cause to charge.” sustain the “may upon hearsay be based in whole or in Benov, Prasoprat v. F.3d (inter- part.” Kin-Hong, 110 at (9th Cir.2005) (internal quotation marks omitted). quotation nal marks — denied, omitted), —, cert. U.S. only Not are admissibility standards (2006); S.Ct. 164 L.Ed.2d 51 see 18 relaxed, alleged fugitive’s ability but the § hearing, U.S.C.A. 3184. The extradition “ challenge government’s evidence or to course, ‘is not ... in the nature of a submit evidence of his own the extradi- final trial the prisoner which could be hearing tion significantly also limited. convicted or acquitted of crime ” example, For the fugitive right has no LoDuca, charged against him.’ 93 F.3d at witnesses, cross-examine see Oen Yin- McMahon, (quoting Benson v. Robinson, Choy 1406-07 457, 463, U.S. 8 S.Ct. 32 L.Ed. 234 (9th Cir.1988), (1888)). or to introduce “contradic- differently, hearing Stated tory gov- evidence” that conflicts with the designed “not as a full trial” but as a evidence, probable means of ernment’s cause see “inquiring] presence into the probable Hoxha, contrast, cause to believe that By there has 465 F.3d at 561.

609 Loisel, 426, 430, to un “explanatory relating 618, evidence” v. 262 U.S. 43 S.Ct. (1923). charges is admissible. See Kos derlying 67 L.Ed. 1062 (1st Roche, 169, kotas v. 931 F.2d Habeas Review the Ex- Certification of Cir.1991).1 traditability judge If the extradition concludes that Assuming the extradition judge certifies is, fact, cause, probable there he “is request extradition to the Secretary of certify to the individual as extra- required State, fugitive has but one means of Vo, Secretary ditable State.” judicial filing petition habeas recourse— (internal quotation 447 F.3d at 1237 marks (West 2000). § under 28 U.S.C.A. omitted). noted, previously As once the Miller, 364, 369-70, See Collins v. 252 U.S. judicial officer determines that individ- 347, (1920); 40 S.Ct. 64 L.Ed. 616 see also extradition, eligible ual is the matter States, Kastnerova v. United 365 F.3d Secretary returns to the of State for the (11th Cir.2004) (“There 984 n. 4 is no executive branch to make the ultimate de- appeal direct proceedings.”); extradition cision requested whether surrender the States, Plaster v. United 720 F.2d See, fugitive. e.g., Cheung v. United (4th Cir.1983). 347-48 (2d States, Cir.2000); 213 F.3d see Habeas review the context extradition (West 2000) (“The § 18 U.S.C.A. 3186 Sec- Kastnerova, very narrow. See 365 F.3d retary may of State order the person Essentially, at 984. habeas review of the committed under section 3184 to be extradition court’s certification is limited to any agent delivered to authorized of [the ” consideration of whether the extradition requesting] foreign government .... jurisdiction, had added)). (emphasis charged qualifies crime as an extraditable Finally, noted previously, part as treaty, offense under and whether duty extradition court’s is to determine ” “any there support evidence charged whether the crime is covered magistrate judge’s finding probable particular extradition as an ex- Samples, cause. Prushinowski v. Naturally, offense. traditable this deter- (4th Cir.1984) (quoting may require mination judge 311, 312, v. Phillips, Fernandez 268 U.S. charged to decide whether the offense falls (1925)); 45 S.Ct. 69 L.Ed. 970 see within the If it exception. Kastnerova, (explaining 365 F.3d at 985 does, then the offense is non-extraditable job that the habeas court’s is to determine fugitive one and the accused cannot be “whether the presented Government com extradition, eligible for despite the exis- petent upon magistrate evidence which the See, Vo, probable e.g., tence of cause. grounds could find there were reasonable F.3d at 1237-38. Such a decision effec- upon which to fugi [the believe accused tively removes discretion from the Secre- offenses”). guilty tive] State, tary may who not extradite Thus, applied the standard of review extraditability. absence of a certificate of of a decision to issue § government, See 18 U.S.C.A. 3186. The however, certificate of extradition is at least def may pursue continue the nec- erential, so, if essary applied certification not more than that presenting its case to a different judge. magistrate judge’s See to a decision to issue a Collins contradictory any 1. The line between not introduce evidence of his own. Both inadmissible explanatory parties attempted respective evidence admissible evidence to establish their and. Hoxha, government’s positions is often difficult to fix. See on the based submis- case, however, this Ordinola did sions. Vo, Gates, 447 F.3d at 1240. We review 462 see also Illinois See search warrant. 2317, findings factual for 213, 236, 76 L.Ed.2d the extradition court’s 103 S.Ct. U.S. (1983) appellate courts of law de (requiring error and its conclusions clear if there is of a warrant the issuance at 1163. Afanasjev, affirm 418 F.3d novo. See magis- support basis” “substantial cause determination judge’s probable trate II. omitted)). (internal It is marks quotation A. reviewing court is well-established its own view of to substitute permitted not treaty, the bilateral extradition Under magistrate findings for the of the the facts “agree to ex- States and Peru the United Fuller, 441 v. judge. See United States persons other whom tradite to each Cir.1971). 755, Requesting the authorities State action for the In no sense does a habeas of, with, charged guilty found or sen- have decision afford the review of an extradition for, the commission of an extradita- tenced weigh opportunity court an reviewing Treaty Extradition with ble offense.” fact-finding in a ca the evidence or serve 2001, Peru, U.S.-Peru, 26, Treaty July S. magistrate judge’s un pacity. Just as the (2002) 107-6 Peru Trea- [hereinafter Doc. is not a mini-trial derlying determination ty], treaty art. I. The defines an extradi- guilt fugitive, or innocence of the “punish- an offense that is table offense as court’s habeas review should the district Contracting able under the laws both hearing duplicate not the extradition —ha- by liberty for ... deprivation States rehearing for beas review “is not means year by a more more than one severe findings.” Afanasjev v. magistrate’s II, 1, Treaty, § or the penalty,” Peru art. (11th Cir.) Hurlburt, 1159, offense, attempt to commit such an see (internal omitted), cert. quotation marks II, Treaty, § 2. Peru art. — denied, U.S.—, 126 S.Ct. treaty of the extradition also Article IV (2005). long the factual L.Ed.2d 489 As deny- forth several for specific sets bases magistrate findings support ing request, including an extradition clearly conclusions are not judge’s legal for mandatory politi- denial of extradition erroneous, reviewing court is bound cal offenses: “Extradition shall be magistrate. the facts as determined may granted if the offense for which extradition reviewing not substitute its requested political own of the facts for that of the is constitutes a of- assessment may IV, § nor it make addi Treaty, Peru art. 2. As is fense.” tional, findings treaties, fact that the extra new typical of international extradition dition not make. court did however, agree- the bilateral extradition and Peru ment between United States case, only question real this “politi- not define what constitutes a does charged whether the crime is an extradita- Instead, three specifies cal offense.” ble offense under the Ordinola is —if qualify as a offenses do not offense, it not an charged with a (1) murder “of a Head of State of offense: crime. extraditable (2) States”; Contracting “geno- one judge’s regard determination this re- cide, as described in the Convention on quired findings application factual and the Prevention and Punishment Crime therefore, facts; of law to such we are (3) Genocide”; “an offense presented a mixed of law Ruiz, have the Contracting which both States and fact. 161 U.S. See Ornelas (1896); multilateral inter- obligation pursuant to a 16 S.Ct. 40 L.Ed. 787 agreement person deciding national to extradite the whether a crime under Id.2 sought [prosecute] or to the case....” of a foreign sovereign law is a offense). Nevertheless, long-estab- develop fallen to the courts to It has practice lished judiciary is to deter- the contours of the of- establish mine whether the excep- exception duty to extradite. fense tion applies given to a common crime. See Comment, RICO, Sicalides, See Barbara Ornelas, 161 U.S. at 16 S.Ct. 689. CCE, Extradition, and International (1989) (“Because Temp. 1801 L.Rev. primary The determining test for wheth agreement is no international con- there offense, er a crime is a political relative as cerning political which crimes constitute majority, noted the ques involves two offenses and the term is seldom because (1) whether, tions: at the time of al treaties, in appli- defined its definition and offense, leged there was a political “violent courts.”); to cation have been left M. disturbance, war, such as revolution and Bassiouni, International Extradition and rebellion”; (2) whether alleged (1974) (noting World Public Order 371 offense was “committed in the course of judiciary primary that the is the source for and incidental to” political the violent dis developing parameters political States, turbance. Escobedo v. United 623 majority exception). opin- offense As the (5th Cir.1980). Virtually ably explains, recognize ion federal courts every question court to encounter the “pure” a distinction between and “relative” whether crime is a relative Robinson, Quinn political offenses. See political applied offense has this two- (9th Cir.1986). 776, 793 783 F.2d Ordinola See, pronged e.g., Barapind test. v. Eno argues charged that he is with crimes that moto, Cir.2005) (en 400 F.3d offenses, qualify political would as relative banc). 1.e., that common crimes are “so connected political exception provides offense political with a act that the entire offense the would-be extraditee with an affirmative Eain, regarded political.” is as 641 F.2d Vo, defense extradition. See 447 F.3d (internal omitted). quotation at 512 marks Thus, government at 1242. once the car- espionage “Pure” offenses such as establishing ries its burden of ever, rarely, if treason are at issue in extradition, subject defendant litigation; extradition it is the “relative” burden prove shifts extraditee to involving category otherwise extraditable charged with crimes which he that produces significant common crimes are offenses. id. See Quinn, problems.” “definitional at 793-94. The B. sufficiently common crime is connected to thoroughly by Judge As detailed act require would seem to courts Williams, Ordinola was Peru beyond to venture their limits the extra- Aggravated Aggravat- Homicide and process dition and into the political domain offenses, Eain, Kidnapping, among ed other aris- of the executive branch. See (noting ing F.2d at out Ordinola’s association with the anomalous nature judicial practice Group, branch’s historical Colina a counter terrorist unit Treaty, 2. The lists two offenses "offenses related terrorism.” Peru IV, clear, category 2(c)(i), (ii). fall within this latter of offenses § art. The text makes contracting however, which the states have an obli- that this list is not intended to be gation pursuant to extradite to a multilateral exhaustive. agreement: drug trafficking international government ac- “[a]rguably, everything Army assigned to the Peruvian within Path, therefore] ‘political’ [and a violent revolu- tor does is combat theoretically protects former destroying exception Peru’s bent tionary group ac- facing officials from their charges against government Ordino- government. they govern used to underlying merely incidents because from four cusers la stem and 1992 which Ordino- Id. at 424. See In re Extradition in 1991 them.” occurred Suarez-Mason, alleg- F.Supp. Colinas la and other members (N.D.Cal.1988) prin- murdered numerous (concluding “the edly brutalized ex- underlying individuals. offense ciples by extending pro- its ception are ill-served can- that these offenses claims Ordinola officials”). government to former tection for extradition be- as the bases not serve underlying acts cause he committed Unfortunately, the issue of whether Group a Colina duty of his the course ever be exception should posed threat the terrorist fight member to a former actor is applied suggests Path. Ordinola the court, gov- technically before this the not duty merely carrying out his that he was pursue not to the having ernment elected government midst preserve to the before the extradition argument therefore, he contends political upheaval; Accordingly, review. we have on habeas underlying crimes with which he prob- to address this difficult no occasion “political as offenses” charged qualify is excep- the directly and must assume lem Extradition meaning of the within the theoretically to an extrad- tion is available the United States and Treaty between practical As a itee such as Ordinola. Peru. matter, however, difficulty the of assess- government agent’s a former claim to ing extradition raises defense to

Ordinola’s political exception persists the offense issue about the interesting an theoretical essentially argument, Ordinola’s which is excep- political offense application any no different than the claim acts charged government agents tion to former auspices he committed under the the an while there is with crimes committed Indeed, Group political. were Colina against gov- ongoing political uprising for the existence of the Coli- purpose sole Buckland, Aimee Com- ernment. See J. political: preserve to Group na ment, Former Gov- Offending Officials: revolutionary group from the government and the Political ernment Actors Offense Specifically, it. sought to overthrow Extradition, 94 L.Rev. Exception to Cal. position that he is Ordinola takes (2006) (“[T]he 423, 424 is unsettled as law political offenses because charged government former officials to whether underlying politically acts were moti- may exception offense political use the acting pursuant to di- vated —he was exception appropriate is Thus, superior from his officers. context.”). rectives original purpose this “The mind, fighting in- in Ordinola’s he was exception to extradi- political offense to surgency. argument Ordinola’s seeks from protect tion was to revolutionaries determining whether reduce the test for prosecution to face being returned crime falls within the charged against govern- their crimes committed subjec- exception to one based on offense ments,” protection afford id. at But, going if tive motivation. we are seeking suppress rebellion. those permit a former actor to avail position There for the support exception, himself of the offense exception apply does not political offense because, subjective can- motivation the offender’s a situation such as Ordinola’s not serve as the sole determinate of threat posed by the Shining Path. J.A. whether an offense is a one. As Although 528.3 the district court’s assess- noted, Judge correctly “[a]n Williams of ment presented of the evidence a political simply fense is not of character magistrate judge part as of the extradition it politically because was motivated.” Es hearing certainly it plausible, ignores cobedo, 1104; 623 F.2d at see Ahmad v. of whether magistrate (2d Cir.1999); Wigen, 910 F.2d judge’s clearly assessment was erroneous. (“[F]or Earn, 641 F.2d at 520 purposes of Rather than reviewing the extradition extradition, motivation is not itself deter findings error, court’s factual for clear any minative of the character of district court preferred ruled based on its act.”). given view of the record —that targets Ordinola’s Rather, inquiry the heart of the when were not necessarily civilians. Additional- to determining comes whether the ly, the district court upon relied a new offense falls within the factual determination —that Ordinola did Ornelas, exception objective. must be See not act knowingly. 509-12, 161 U.S. at 16 S.Ct. 689. Factors explicit did not make an finding regarding such “the foray, character of the knowledge Ordinola’s of the civilian status attack, persons mode of [and] killed anything, his victims. If captured” are appropriate for courts to judge implicitly declined to make such a whether, in determining consider as an finding, noting subjective “political in- matter, objective the common crime at is- part tentions on the of the extraditee are sue major political was “incidental” to a not enough to render an act a political 511-12, uprising. disturbance or Id. at Moreover, offense.” J.A. 29. the district S.Ct. 689. court’s reliance on this finding later fact—Ordinola’s lack knowledge —rests C. faulty premise on the same as Ordinola’s magistrate judge concluded that argument subjective that his motivation is political uprising there was a sufficient to determining factor. prong meet the first of the incidence test. event, any In our review of the extradi- further, however, He concluded that none tion decision must consider the factual ba- underlying four events were suffi- by sis as magistrate judge determined ciently uprising qualify incidental to the regard without to the district view court’s political magistrate offenses. The of the facts. judge’s conclusion that charged Ordinola’s offenses not “political were offenses” rest- I. Barrios Altos Case primarily ed on his conclusion that May In Ordinola and other mem- clearly “victims in this case were civilians” bers of the Group allegedly Colina killed political upheaval with no connection to the children, people, including women and in Peru at the Sitting time. J.A. 31. at a purportedly being fundraiser held to order, review of the extradition the district Shining benefit the Path. The court concluded to the contrary Or- —that Colinas, riding found that the in two dinola was with a vehicles, pulled up apartment he at an com- knowingly because “did murder in- nocent civilians” responding plex but was to the in the Barrios Altos section in Lima dismissing finding young teenagers 3. In court's mon for children or to as- civilians, clearly Shining that the victims were sume the terrorist roles Path.” district court noted that was not "[i]t uncom- J.A. determination that the vic- heavily proceeding was party where any con- without real fire on tims were civilians “opened yard complex’s women, men, and children.” J.A. Shining Path. nections to the crowd by another identified was 19. Ordinola failed to Ordinola agree I that would participant aas member Colinas “inci- actions were that demonstrate these of a as the shooter specifically attacks and ar- His to a disturbance. dental” wounded running to his was child who essentially that his conduct with gument is concluded magistrate judge father. slayings Altos was respect to the Barrios alleg- boy [Ordinola] that “the little whom upheaval be- to Peru’s political incidental ... al- was edly at the [fundraiser] shot further intended to cause his actions were terrorist, and the not a certainly most overarching objective of de- the Colinas’ for the other likely be said can most same suggested Shining Path. As stroying J.A. 31. partygoers.” explained magistrate judge these facts. not contradict does Ordinola subjective majority opinion, Ordinola’s other evidence Rather, he contends motivation, may have though it government by the Peruvian submitted been, alone convert his common does not Group Colina demonstrates Ahmad, See crimes into offenses. provided by a acting based on information must show F.2d at 1066. Ordinola infiltrated the agent who polit- crimes were that his incidental that members reported Shining Path objective vantage uprising ical from an Shining gathered Path and friends of the fact, He fails to do so. point, as well. killings Altos socially where the Barrios really challenge the does not Ordinola highlights Peru’s also occurred. Ordinola magistrate judge’s finding of fact submis- acknowledgment, its with no ties victims were civilians it “pre- sion to the State Department, Path, and he has failed to demon- injuries bodily sumed murder factors, such as strate that other Ornelas feeling caused were motivated attack, suggest the nature of J.A. 441. against retaliation terrorism.” by the Actually, the facts noted crime. therefore, that his ac- suggests, Ordinola op- judge precisely the suggest were a of the Colinas tions as member in attack occurred a residential posite'—the specific threats response undertaken in gathering for a social and being area used Path in order to posed by Shining military operations was not connected to Thus, protect government. Peruvian against government. incidental argues he that his crimes were in Peru at the disturbance Mill Case 2. Chimbóte Cotton Workers time. May Army General In Peruvian rejected judge Ordino- arranged meeting a between Juan Rivero politi- position, concluding that “mere la’s Group Jorge Fung and Colina leaders of the extraditee part cal intentions on the Pineda, private of a cotton mill. the owner an act a enough are to render making mill workers demands Cotton were determining offense.” J.A. 29. machinery. wages better higher for and incidental to Ordinola’s crimes were not Pineda, mili- who had connections Peru, in disturbance ongoing political Group, tary, requested the Colina objective magistrate judge listed fee, in ter- “get involved [the workers] only one of factors but discussed Ornelas good lesson.” rorism and teach them killed or persons them —the status of the Group, the Colina relied J.A. 23. Members of captured. judge The magistrate Ordinola, kidnapped eight work- at “La including University, mitories Cantutu” army ers from their homes and a ninth while he agent where an had infil- allegedly bicycle, them riding executed reported trated and presence of terror- location, At the buried the bodies. burial Wearing ists. carrying masks and weap- paint used red to write Colinas ons,- lime, shovels and Ordinola and other slogans. Path fifty Colinas removed students from their rooms assembled them outside. The argues Ordinola that he and the other army agent identified ten fifty stu- belief, Colinas acted under the based on dents as terrorists. The Colinas also ab- provided by government information colla- ducted a professor identified agent borators, mill workers were in- aas terrorist. The students pro- and the in sug- volved “subversive” activities. He fessor location, were taken to another gests that the evidence shows the Colinas they where were executed after kept digging were in the dark about true na- graves. their own ture of their mission Members of the superior officers. Colina witness, According Group subsequently to a exhumed and inciner- they executing Colinas believed were ter- ated they the bodies for fear that would be rorists learned that the executions had discovered. “private job’-’

been a only after the fact. incident, In the final which occurred Again, argument hinges Ordinola’s sole- 1992, Army Major June Rivas summoned ly subjective upon his belief that he was Group, Ordinola, the Colina including fighting government’s war on terror- they informed them that would conduct an ism, and that the cotton mill workers were operation Huacho but did not provide But, actually insurrectionists. such facts any specifics. day, The following the Coli- do not the magistrate demonstrate that na Group traveled in two vans to an area clearly finding erred that Ordino- near a beach. Rivas group directed one la’s actions politi- were not incidental to a beach; adig grave and remain at the cal uprising. acting That Ordinola was other group was ordered to abduct Pedro upon superior orders from officers or mis- Yauri Bustamante from his home and re- takenly killing believed that he was terror- turn him to the beach. Bustamante may ists ultimately demonstrate that he journalist daily was a who broadcast lacked the intent to commit murder or program radio which he often criticized however, kidnapping; these issues are government. Army Intelligence had justice ones for the system Peruvian investigated previous Bustamante on two out sort after a full-blown trial. For our occasions and listed him as active terrorist. part, we are not concerned with whether that, judge found al- Ordinola has a defense to underlying though “it slightly plausible is more that job charges. simply Our is to decide university professor students and whether Ordinola is with a politi- journalist Shining ... had ties to the cal offense based the limited evidence Path did fundraiser or [than attendees hearing, adduced the extradition which workers], factory the evidence such [of preliminary designed nature and not strong.” is not J.A. 31. ties] fully develop the evidence. response, again, Ordinola’s that

3. La Cantutu and Bustamante Inci- Group according to Colina acted what dents targeted individuals told—that July In part Shining Ordinola and other mem- were Path. Because the Group bers of the Colina to the dor- Group went mission of the Colina was to elimi- Path, by Shining posed the threat nate America, STATES of UNITED these incidents were that argues

Ordinola Plaintiff-Appellee, political upris- to the necessarily connected forth very reasons set same ing. For reject argument as this I would previously, MIDGETTE, Nicholas Omar subjective mo- relies on well. Ordinola Defendant-Appellant. that his crimes prove alone to tivation offenses; to offer he fails No. 05-4765. were po- objective factors that demonstrate Appeals, States Court United charged offenses. nature of the litical Fourth Circuit. 27, 2006. Argued Oct. III. Decided Feb. conclusion, when objectively, he the evidence judge viewed the kill- to show that

found it insufficient suppress were to kidnappings

ings and women, Men, revolution.

Shining Path killed indiscrimi- children had been had slogans Path been

nately. fact. Bodies walls after the

painted on the incinerated. Not one hidden or

were any of objective evidence showed

shred of sup- have members

the victims to been Shining Path. Evidence

porters of the superi- informants or was told

Ordinola killed were persons be

ors objec- is not

insurgents supporters or their Instead, they were. proof

tive subjective- what Ordinola goes

evidence may be of relevance

ly believed if charges he is

way of defense to Peru for trial.

ultimately returned

Here, however, him. it cannot avail Con- no error in the

sequently, I can find clear magistrate judge that

conclusion of the offenses

these crimes were the extradition trea- meaning

within the Therefore, agree I

ty. reversal

district court is warranted.

Case Details

Case Name: Wilmer Yarleque Ordinola v. John Hackman, Acting United States Marshal for the Eastern District of Virginia

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 22, 2007

Citation: 478 F.3d 588

Docket Number: 06-6126

Court Abbreviation: 4th Cir.