Opinion
Civil Action H-04-3014.
August 6, 2004
Opinion on Reconsideration
1. Background.
On July 23, 2004, this court certified the extradition of Rogelio Montemayor Seguy, the former head of the national oil company of Mexico, to stand trial in Mexico on three charges of peculation and three charges of wrongful use of powers. See Art. 223, ¶ 1, of the Mexican Federal Criminal Code; Art. 217, ¶ 111, of the Mexican Federal Criminal Code. Montemayor petitioned for a writ of habeas corpus, reasserting the same claims he made at his extradition hearing. It was denied. Montemayor asks this court to reconsider.
2. Claims.
Montemayor claims that the complaint for extradition was based on two fraudulent documents. The first is a schedule of budget expenditures. Montemayor says that the version of the document used by the Mexican prosecutors to bring the peculation charges is fraudulent and that it did not authorize him to give social aid to the oil company's union. He contends the "correct" version allowed him to give the money for those purposes.
The second document is a letter from a director of the oil company to the comptroller about whether the union had enough dues to secure substantial loans from the company. One version says that the union's ordinary dues were not enough. The other — the one Montemayor claims is correct — concurs that the ordinary dues were not enough but also says that the union has extraordinary dues that could help secure the loans.
In addition, Montemayor complains about the Mexican government's refusal to cooperate with discovery, particularly its suppression of another document and failure to certify others as true and correct.
3. Fraud.
The potentially fraudulent documents do not amount to a fraud on the court. See Demjanuk v. Petrovsky, 10 F.3d 338, 356 (6th Cir. 1994). Both versions of the documents were admitted into evidence. Moreover, Montemayor specifically admitted that the United States attorney did not offer the "forged" documents to deceive this court. There is no constitutional defect in the process if allegedly exculpatory documents are known or if the "fraud" is disclosed and discussed in court.
4. Contradictions.
At best, the competing versions of the documents create an issue of fact. In fact, it is unclear whether the "correct" version of the dues letter proves anything, much less Montemayor's innocence. It does not say that the extraordinary dues were enough when added to the regular ones to fund the repayment.
Contradictions do not defeat a finding of probable cause and are not grounds for vacating the extradition certificate. See Polo v. Horgan, 828 F. Supp. 961, 966 (S.D. Fla. 1993). They merely give Montemayor a defense at a trial in Mexico.
On habeas review, a court only needs to determine whether there is "any evidence" to support a finding of probable cause that the accused committed the crimes. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (Holmes, J.). Even if the documents were forgeries, there is a sufficient amount of additional evidence to support a finding of probable cause to believe that he committed the crimes. See Magisano v. Locke, 545 F.2d 1228, 1230 (9th Cir. 1976).
5. Discovery.
The United States does not have a duty to collect all of the evidence from Mexico. See In re Extradition of Drayer, 190 F.3d at 415. It is only a conduit for the Mexican government. If, as a matter of executive judgment, the United States wants to ask for more information, it may. It had no duty other than to present the charges on which, in its discretion, it chose to assist the other nation. The court ordered some discovery, and after some extensive production, it concluded that, given its limited role, the accused had enough and set the trial. Montemayor's contentions that the Mexican government was uncooperative with discovery are not grounds to vacate the extradition.
5. Conclusion.
There was no constitutional defect in Montemayor's extradition because this court was not misled and there is probable cause to believe Montemayor committed the crimes charged. His motion to reconsider will be denied.