Opinion
No. 12–56506.
2014-11-20
Jose Luis Munoz SANTOS, Petitioner–Appellant, v. Linda R. THOMAS, Warden, Respondent–Appellee.
Matthew B. Larsen (argued), Deputy Federal Public Defender, and Sean K. Kennedy, Federal Public Defender, Los Angeles, CA, for Petitioner–Appellant. Aron Ketchel (argued), and Robert E. Dugdale, Chief, Criminal Division, Assistant United States Attorneys, and André Birotte Jr., United States Attorney, Los Angeles, CA, for Respondent–Appellee.
Filed March 9, 2015.
Affirmed.
Matthew B. Larsen (argued), Deputy Federal Public Defender, and Sean K. Kennedy, Federal Public Defender, Los Angeles, CA, for Petitioner–Appellant. Aron Ketchel (argued), and Robert E. Dugdale, Chief, Criminal Division, Assistant United States Attorneys, and André Birotte Jr., United States Attorney, Los Angeles, CA, for Respondent–Appellee.
Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 2:11–cv–06330–MMM.
Jose Munoz Santos (“Munoz”) appeals the district court's denial of habeas relief from a magistrate judge's order certifying his extradition to Mexico on kidnapping charges. He argues that the magistrate judge erroneously excluded evidence that two witnesses, who had provided key inculpatory statements, later recanted and stated that their statements were obtained by torture. We find no error. The evidence of torture was, as Munoz concedes, inextricably intertwined with the witnesses' recantations. As a result, considering the witnesses' claims of torture would have required the magistrate judge, serving as the extradition court, to weigh conflicting evidence and make credibility determinations. Under these circumstances, the extradition court properly excluded this evidence. We affirm.
The extradition court had jurisdiction pursuant to 18 U.S.C. § 3184. The district court had jurisdiction pursuant to 28 U.S.C. § 2241(a), and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). As relevant here, “[t]he district court's habeas review of an extradition order is limited to whether ... there is any competent evidence supporting the probable cause determination of the [extradition court].” Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir.2006) (internal quotation marks omitted). We review de novo the district court's decision denying a habeas petition. Prasoprat v. Benov, 421 F.3d 1009, 1013 (9th Cir.2005).
Extradition from the United States begins when a foreign nation lodges a request directly with the United States Department of State. Vo, 447 F.3d at 1237. After the State Department evaluates whether the request falls within the scope of the relevant extradition treaty, a United States Attorney seeks an arrest warrant in federal district court for the person sought. Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir.2003). If a judicial officer—usually a magistrate judge—finds that there is probable cause to “sustain the charge under the provisions of the proper treaty or convention,” 18 U.S.C. § 3184, the officer certifies to the Secretary of State that the person is extraditable, Blaxland, 323 F.3d at 1208.
Extradition proceedings are limited affairs, akin to “preliminary examinations ... for the purpose of determining whether a case is made out which will justify the holding of the accused.” Charlton v. Kelly, 229 U.S. 447, 460, 33 S.Ct. 945, 57 L.Ed. 1274 (1913) (quoting Benson v. McMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 32 L.Ed. 234 (1888)). A person facing extradition may present evidence that “explains away or completely obliterates probable cause ... whereas evidence that merely controverts the existence of probable cause, or raises a defense, is not admissible.” Mainero v. Gregg, 164 F.3d 1199, 1207 n. 7 (9th Cir.1999), superseded by statute on other grounds, Pub.L. No. 105–277, § 2242. This rule rests on the principle that a foreign government seeking extradition should not be forced “to produce all its evidence [before the extradition court in the United States], both direct and rebutting, in order to meet the defense thus gathered from every quarter,” thereby converting the extradition proceeding “into a full trial on the merits.” Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 66 L.Ed. 956 (1922) (quoting In re Wadge, 15 F. 864, 866 (S.D.N.Y.1883)). Thus, although “[a]dmission of evidence proffered by the fugitive at an extradition proceeding is left to the sound discretion of the court,” the exercise of that discretion is “guided of course by the principle that evidence of facts contradicting the demanding country's proof or establishing a defense may properly be excluded.” Hooker v. Klein, 573 F.2d 1360, 1369 (9th Cir.1978).
Courts have struggled to explain the distinction between admissible “explanatory” or “obliterating” evidence on the one hand, and inadmissible “contradictory” evidence on the other. See, e.g., In re Extradition of Strunk, 293 F.Supp.2d 1117, 1122 (E.D.Cal.2003) (describing the distinction between these types of evidence as “metaphysical”). We need not wade into that issue in great depth, however, as our decision in Barapind largely guides our analysis in this case.
In Barapind, a district judge, sitting as an extradition court pursuant to 18 U.S.C. § 3184, certified Kulvir Singh Barapind's extradition to India. 400 F.3d at 746–47. The government of India sought Barapind's extradition due to his involvement in several incidents as a member of the All India Sikh Student Federation, a group “dedicated to establishing an independent sovereign Sikh nation.” Id. at 747. In one of the incidents, Barapind allegedly “drove a scooter while a gunman riding with him killed one man and wounded another.” Id. at 749. India relied heavily on the affidavit of Makhan Ram, a witness who identified Barapind as the driver of the scooter. In re Extradition of Singh, 170 F.Supp.2d 982, 1004–05, 1024 (E.D.Cal.2001).
In the extradition court, Barapind offered another affidavit from Ram, in which Ram “denie[d] ever having made a statement implicating Barapind or having seen him at the scene of the attack.” Id. at 1024. The extradition court noted Ram's “potential bias against India” based on a claim that he previously had been falsely accused of a crime by the police. Id. The court also pointed to a lack of information concerning the circumstances under which the subsequent affidavit was taken, and about Ram's “background or political views to enable evaluation of his motives and possible bias.” Id. The extradition court then certified Ram's extradition, concluding that Ram's “recantation is conflicting and inconsistent with his earlier alleged statements,” and that, “[u]nder all the circumstances, the credibility of Makhan Ram's recantation cannot be determined without a trial.” Id.
We affirmed the certification of extradition as to the charges relating to the above incident. In an en banc ruling, we held that an extradition court may properly exclude recantations or other conflicting statements if consideration of such evidence would require the court to weigh conflicting evidence or make credibility determinations. Barapind, 400 F.3d at 749–50; see also Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir.1986) (noting that an extradition court “does not weigh conflicting evidence and make factual determinations”). We concluded:
The extradition court was supported by competent evidence in finding that Barapind did not obliterate India's showing of probable cause, as [Ram's] more recent affidavit constituted conflicting evidence, the credibility of which could not be assessed without a trial. Because extradition courts do not weigh conflicting evidence in making their probable cause determinations, we find no basis for overturning the extradition court's decision that probable cause of Barapind's guilt existed....
Barapind, 400 F.3d at 749–50 (citation, internal quotation marks, and brackets omitted).
Barapind 's analysis of recantation evidence is largely consistent with the approach of other circuit courts that have addressed this issue. See Hoxha v. Levi, 465 F.3d 554, 561–62 (3d Cir.2006) (holding that the extradition court did not abuse its discretion in excluding a recantation given that the original statement was independently corroborated, and the recantation “provided an alternative and contradictory narrative that can properly be presented at trial”); Eain v. Wilkes, 641 F.2d 504, 511–12 (7th Cir.1981) (holding that the extradition court properly excluded statements offered by a person challenging extradition because the statements “tend to contradict or challenge the credibility of the facts implicating petitioner,” and that “such a contest should be resolved at trial” in the country seeking extradition).
Here, like Ram's second affidavit in Barapind, the subsequent statements of Rosas and Hurtado are recantations; they directly contradict or otherwise challenge these witnesses' initial inculpatory statements. Rosas stated that he wished to “retract” his prior statement, and that he “den [ied]” the parts of the statement that implicated him. Hurtado asserted that he “do[es] not ratify” his initial statement, had “nothing to do” with the alleged kidnapping, was performing carpentry work on the day of the alleged kidnapping, and did not know Munoz or Rosas. Determining whether to credit these subsequent statements or Rosas' and Hurtado's initial inculpatory statements would have required the extradition court to weigh conflicting evidence and make credibility findings. We therefore conclude that the extradition court properly excluded these subsequent statements because they constitute inadmissible recantations. See Barapind, 400 F.3d at 749–50. Since Munoz's only challenge to the extradition court's probable cause determination is based on the exclusion of these recantations, we likewise conclude that the probable cause determination was supported by competent evidence. Cf. Quinn, 783 F.2d at 815 (“[O]n review we can determine only whether, because of an absence of competent evidence, the magistrate's [probable cause] determination is wrong as a matter of law.”).
A recantation is a “retraction” or a “disavowal.” Recantation, Oxford English Dictionary, www. oed. com/ view/ Entry/ 159345? redirected From= recantation# eid (last visited Feb. 2, 2015).
This conclusion is bolstered by the fact that, like in Barapind, Rosas and Hurtado had an incentive to falsely recant, as they presumably faced criminal liability stemming from their own participation in the alleged kidnapping. Cf. In re Extradition of Singh, 170 F.Supp.2d at 1024 (noting the recanting witness's reasons for bias against the Indian government).
Munoz argues that two of the challenged statements—Rosas' statement of May 25, 2006, and Hurtado's statement of March 22, 2006—offer no alternate factual account of the kidnapping to compete with the version of events relied on by Mexico in support of its extradition request. According to Munoz, the recanting statements should not have been precluded as “contradictory” evidence because in these statements, Rosas and Hurtado simply reject their prior inculpatory statements on the ground that they were procured by torture. Munoz's argument is foreclosed by Barapind because there, Ram's recantation also did not offer a competing factual narrative. See 400 F.3d at 749. Rather, Ram stated that he never identified Barapind and was forced by the police to sign a blank sheet of paper. Id. We nonetheless found no error in the extradition court's conclusion that it could not resolve the conflict between Ram's affidavits without a trial. Id. at 749–50. The same analysis applies here.
Next, Munoz contends that evidence procured by torture is necessarily not “competent evidence” that can support a determination of probable cause. It is beyond dispute that the use of evidence obtained by torture is “unspeakably inhumane,” Boumediene v. Bush, 476 F.3d 981, 1006 (D.C.Cir.2007) (Rogers, J., dissenting), judgment vacated, Al Odah v. United States, 282 Fed.Appx. 844 (D.C.Cir.2008), and evidence obtained by torture is inadmissible in domestic criminal proceedings, cf. Crowe v. County of San Diego, 608 F.3d 406, 433 (9th Cir.2010). Here, however, we agree with the district court that the allegations of torture are “inextricably intertwined” with Rosas' and Hurtado's recantations. Each recantation includes both a disavowal of the witness's prior inculpatory statements, as well as allegations that the statements were procured by torture. Indeed, Munoz concedes that the district court correctly characterized the evidence as “inextricably intertwined,” and that Rosas and Hurtado are essentially saying, “I was tortured so the things I said the first time are not credible.” Thus, in order to evaluate Rosas' and Hurtado's torture allegations, the extradition court would necessarily have had to evaluate the veracity of the recantations and weigh them against the conflicting inculpatory statements. Doing so would have exceeded the limited authority of the extradition court. See Barapind, 400 F.3d at 749–50; Quinn, 783 F.2d at 815.
We recognize that several extradition courts in this Circuit have, at times, elected not to rely on evidence allegedly obtained by torture, or have considered allegations of torture but found them to be unreliable. See Cornejo–Barreto v. Seifert, 218 F.3d 1004, 1008 (9th Cir.2000), overruled on other grounds, Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir.2012); Mainero, 164 F.3d at 1206 (noting that the extradition court considered allegations of torture, but ultimately found that there was “no reliable evidence of torture or duress”). Indeed, Munoz cites a different passage in Barapind, where we endorsed the extradition court's “incident-by incident” consideration of whether certain evidence was fabricated or procured by torture. See 400 F.3d at 748. Some courts in other circuits have taken similar approaches. E.g., Atuar v. United States, 156 Fed.Appx. 555, 563 (4th Cir.2005) (noting that the extradition court “correctly considered” evidence that a prior inculpatory statement was obtained by torture, but found that evidence to be less reliable than the initial inculpatory statement); Matter of Extradition of Contreras, 800 F.Supp. 1462, 1469 (S.D.Tex.1992) (finding recantations alleging torture to be more credible than initial inculpatory statements).
However, none of these cases stands for the proposition that an extradition court must accept as true allegations of torture whenever they are raised, nor do they endorse the weighing of evidence by an extradition court. Rather, these cases reflect the highly fact-intensive nature of these proceedings, and the well-established principle that “[a]dmission of evidence proffered by the fugitive at an extradition proceeding is left to the sound discretion of the [extradition] court.” Hooker, 573 F.2d at 1369. Under the appropriate circumstances, an extradition court may exercise its discretion to consider allegations of torture. But in a case like this one, where torture allegations are inextricably intertwined with the witnesses' recantations, the evidence was properly excluded because its consideration would require a mini-trial on whether the initial statements of Rosas and Hurtado were procured by torture. See Barapind, 400 F.3d at 749–50.
The government asserts that any evidence proffered or relied on by a person facing extradition is per se inadmissible if it requires the extradition court to resolve a factual dispute as to any matter. We need not address this contention because we resolve the case on much narrower grounds, i.e., that Rosas' and Hurtado's allegations of torture were inadmissible, given that those allegations were inextricably intertwined with recantations.
The extradition court did not abuse its discretion in excluding Rosas' and Hurtado's statements alleging torture as contradictory evidence. In turn, the district court properly denied Munoz's habeas petition because the extradition court's probable cause determination was supported by competent evidence.