Santos v. Thomas

830 F.3d 987

Jose Luis Munoz Santos, Petitioner-Appellant

v.Linda R. Thomas, Warden, Respondent-Appellee.

No. 12-56506

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc January 12, 2016, Pasadena, California

Filed July 28, 2016

Matthew B. Larsen (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Petitioner-Appellant.

Mark R. Yohalem (argued) and Aron Ketchel, Assistant United States Attorneys; Robert E. Dugdale, Chief, Criminal Division; Eileen M. Decker, United States Attorney; United States Attorney's Office, Los Angeles, California; for Respondent-Appellee.

Jennifer Pasquarella, ACLU Foundation of Southern California, Los Angeles, California; Steven M. Watt, Human Rights Program, ACLU Foundation, New York, New York; Melissa Hooper, Human Rights First, New York, New York; Baher Azmy, Center For Constitutional Rights, New York, New York; for Amici Curiae the American Civil Liberties Union, American Civil Liberties Union of Southern California, Human Rights First, and Human Rights Watch.

William J. Aceves, California Western School of Law, San Diego, California; Robert E. Kohn, Kohn Law Group, Santa Monica, California; for Amicus Curiae Juan E. Méndez, United Nations Special Rapporteur on Torture.

Before: Sidney R. Thomas, Chief Judge and M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Mary H. Murguia and John B. Owens, Circuit Judges.

Dissent by Judge Callahan

OPINION

BYBEE, Circuit Judge:

Jose Luis Munoz Santos (“Munoz”), appeals the district court's denial of habeas relief from a magistrate judge's order certifying Munoz's extradition to Mexico on charges of kidnapping.¹ In his extradition hearing, Munoz sought to introduce evidence that incriminating statements made against him by his co-conspirators were obtained by torture, and therefore could not support the probable cause required to extradite. The extradition court concluded that the evidence of coercion was not admissible in the extradition hearing, because the allegations were contained in statements in which the witnesses had recanted their previous incriminating statements. The court concluded that this rendered the allegations “contradictory” evidence—as opposed to “explanatory” evidence—and the allegations were therefore inadmissible in an extradition proceeding. See Collins v. Loisel , 259 U.S. 309, 316–17, 42 S.Ct. 469, 66 L.Ed. 956 (1922). The district court denied Munoz's habeas petition, and a panel of this court affirmed, relying in part on our decision in Barapind v. Enomoto , 400 F.3d 744 (9th Cir.2005) (en banc) (per curiam). We took this case en banc to determine the admissibility in an extradition hearing of evidence suggesting that other evidence presented in the hearing was obtained through coercion or torture.

We hold that evidence of coercion is explanatory, and may be considered by the extradition court, even if the evidence includes a recantation. We reverse the judgment of the district court, and we remand to the district court to issue the writ of habeas corpus unless the extradition court certifies Munoz's extraditability after proceedings consistent with this opinion.

I. THE EXTRADITION PROCESS

The procedural history of this case will be easier to navigate with an overview of the extradition process in mind. Extradition law is based on a combination of treaty law, federal statutes, and judicial doctrines dating back to the late nineteenth century. See 18 U.S.C. §§ 3181 –96 ; see also Ronald J. Hedges, International Extradition: A Guide for Judges 1 n.3 (Federal Judicial Center 2014) (“FJC Manual”) (“The law of extradition in the United States is well established, dating back to the late nineteenth and early twentieth centuries.”).

Authority over the extradition process is shared between the executive and judicial branches. The process begins when the foreign state seeking extradition makes a request directly to the U.S. Department of State. If the State Department determines that the request falls within the governing extradition treaty, a U.S. Attorney files a complaint in federal district court indicating an intent to extradite and seeking a provisional warrant for the person sought. See Vo v. Benov , 447 F.3d 1235, 1237 (9th Cir.2006) ; see also 18 U.S.C. § 3184. Once the warrant is issued, the district court, which may include a magistrate judge, conducts a hearing to determine “whether there is ‘evidence sufficient to sustain the charge under the provisions of the proper treaty or convention,’ or, in other words, whether there is probable cause.” Vo , 447 F.3d at 1237 (quoting in part 18 U.S.C. § 3184 ).

The Supreme Court has described these extradition hearings to determine probable cause as akin to a grand jury investigation or a preliminary hearing under Federal Rule of Criminal Procedure 5.1. See, e.g. , Charlton v. Kelly , 229 U.S. 447, 461–62, 33 S.Ct. 945, 57 L.Ed. 1274 (1913) ; Benson v. McMahon , 127 U.S. 457, 463, 8 S.Ct. 1240, 32 L.Ed. 234 (1888) ; FJC Manual at 10. As the First Circuit described the process:

In probable cause hearings under American law, the evidence taken need not meet the standards for admissibility at trial. Indeed, at a preliminary hearing in federal court a “finding of probable cause may be based upon hearsay in whole or in part.” Fed. R. Crim. P. 5.1(a). This is because a preliminary hearing is not a minitrial of the issue of guilt; rather, its function is the more limited one of determining whether probable cause exists to hold the accused for trial. An extradition hearing similarly involves a preliminary examination of the evidence and is not a trial.

United States v. Kin – Hong , 110 F.3d 103, 120 (1st Cir.1997) (citations omitted). We have said that the extradition court's review is limited to determining, first, whether the crime of which the person is accused is extraditable, that is, whether it falls within the terms of the extradition treaty between the United States and the requesting state, and second, whether there is probable cause to believe the person committed the crime charged. See, e.g. , Cornejo – Barreto v. Seifert , 218 F.3d 1004, 1009 (9th Cir.2000), overruled on other grounds by Trinidad y Garcia v. Thomas , 683 F.3d 952, 957 (9th Cir.2012) (en banc); see also Zanazanian v. United States , 729 F.2d 624, 625–26 (9th Cir.1984) (describing the inquiry as “whether: [1] the extradition judge had jurisdiction to conduct proceedings; [2] the extradition court had jurisdiction over the fugitive; [3] the extradition treaty was in full force and effect; [4] the crime fell within the terms of the treaty; and [5] there was competent legal evidence to support a finding of extraditability”).

Foreign states requesting extradition are not required to litigate their criminal cases in American courts. Accordingly, the scope of the extradition court's review “is limited to a narrow set of issues concerning the existence of a treaty, the offense charged, and the quantum of evidence offered. The larger assessment of extradition and its consequences is committed to the Secretary of State.” Kin – Hong , 110 F.3d at 110. “It is fundamental that the person whose extradition is sought is not entitled to a full trial at the magistrate's probable cause hearing.” Eain v. Wilkes , 641 F.2d 504, 508 (7th Cir.1981). Rather, “[t]he function of the committing magistrate is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.” Collins , 259 U.S. at 316, 42 S.Ct. 469. Thus, courts have emphasized that “[t]he person charged is not to be tried in this country for crimes he is alleged to have committed in the requesting country. That is the task of the ... courts of the other country.” Eain , 641 F.2d at 508 ; see FJC Manual, at 10 (“An extradition hearing is not a criminal trial and is not intended to ascertain guilt.”). So long as “the judicial officer determines that there is probable cause, he ‘is required to certify the individual as extraditable to the Secretary of State.’ ” Vo , 447 F.3d at 1237 (quoting Blaxland v. Commonwealth Dir. of Pub. Prosecutions , 323 F.3d 1198, 1208 (9th Cir.2003) ).

Given the limited nature of extradition proceedings, neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply. See Mainero v. Gregg , 164 F.3d 1199, 1206 (9th Cir.1999) ; see also Fed. R. Crim. P. 1(a)(5)(A). Instead, 18 U.S.C. § 3190 provides that evidence may be admitted as long as the evidence is authenticated and would “be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped.” The accused, however, does not have the right to introduce evidence in defense because that would require the government seeking his extradition “to go into a full trial on the merits in a foreign country.” Collins , 259 U.S. at 316, 42 S.Ct. 469 (quoting In re Wadge , 15 F. 864, 866 (S.D.N.Y.1883) ). The Supreme Court has drawn a distinction between evidence “properly admitted in behalf of the [accused] and that improperly admitted.” Id. at 316, 42 S.Ct. 469. Evidence that may be admitted is evidence that “explain[s] matters referred to by the witnesses for the government,” Charlton , 229 U.S. at 461, 33 S.Ct. 945, while “evidence in defense” that merely “contradict[s] the testimony for the prosecution” may be excluded, Collins , 259 U.S. at 316–17, 42 S.Ct. 469 (quoting Charlton , 229 U.S. at 461, 33 S.Ct. 945 ). See Barapind , 400 F.3d at 750 (“[E]xtradition courts ‘do[ ] not weigh conflicting evidence’ in making their probable cause determinations.”) (second alteration in original) (quoting Quinn v. Robinson , 783 F.2d 776, 815 (9th Cir.1986) ); Hooker v. Klein , 573 F.2d 1360, 1369 (9th...