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In re Extradition of Montes

United States District Court, N.D. Illinois, Eastern Division

October 26, 2016

IN THE MATTER OF THE EXTRADITION OF JOSE CRUZ MONTES AKA “EL PAN, ”

          MEMORANDUM OPINION AND ORDER GRANTING REQUEST FOR EXTRADITION

          Jeffrey T. Gilbert, United States Magistrate Judge.

         The Government of Mexico (“Mexico”) has requested the extradition of Jose Cruz Montes (“Cruz Montes”) pursuant to the Extradition Treaty between the United States of America and Mexico, dated May 4, 1978, 31 U.S.T. 5059, TIAS 9656 (the “Treaty”). Mexico says Cruz Montes is wanted for the crime of homicide, as defined in Articles 260, 261, sections I and II, in relation to Article 262, sections I, II, and III, a crime punishable under Article 264 of the Penal Code of the State of Michoacan, Mexico. The United States (“the Government”), acting on Mexico's behalf, contends that the totality of evidence before this Court establishes probable cause to believe that Cruz Montes committed the alleged offense and, therefore, he should be extradited to Mexico. Cruz Montes contests his extradition arguing there is not probable cause to believe he committed the alleged crime.

         This Court has carefully considered the relevant Treaty provisions, the exhibits submitted by Mexico in support of its extradition request, the written submissions of the Government and Cruz Montes, and the arguments made by counsel during the extradition hearing held on September 6, 2016. For the reasons set forth below, the Court finds there is competent evidence to sustain a finding of probable cause as to the charge of homicide in Mexico, and Cruz Montes should be extradited to Mexico in accordance with the Treaty. Therefore, Cruz Montes is committed to the custody of the United States Marshal pending final disposition of this matter by the Secretary of State.

         I. BACKGROUND

         Cruz Montes is wanted in Mexico for homicide in connection with the death of Roberto Herrera Gonzalez (“Gonzalez”). Gonzalez died on January 5, 2011 as a result of the injuries he sustained after Cruz Montes allegedly assaulted him on January 1, 2011. A warrant for Cruz Montes's arrest for assault and battery was issued by the First Judge of First Instance for Criminal Matters in the Judicial District of Morelia, Mochoacan on April 26, 2011. On July 15, 2011, the First Criminal Chamber of the Supreme Court of the State of Michoacan issued a modified arrest warrant for Cruz Montes for the crime of homicide due to the fact that Gonzalez died as a consequence of the injuries sustained.

         On October 4, 2012, Mexico filed Diplomatic Note 06240 regarding the provisional arrest for international extradition purposes of Cruz Montes. On April 27, 2016, the Government filed a Complaint for Provisional Arrest with a View towards Extradition. Cruz Montes was arrested on May 12, 2016 for extradition purposes and has been detained at the Metropolitan Correctional Center (the “MCC”) in Chicago, Illinois, in the custody of the United States Marshal Service. On July 6, 2016, the Embassy of Mexico submitted Diplomatic Note 03329 formally requesting the extradition of Cruz Montes. The extradition hearing was held on September 6, 2016. [ECF No. 16]. The purpose of the hearing was to allow this Court to determine whether the evidence of criminality presented by Mexico is “sufficient to sustain the charge under the provisions of the proper treaty or convention.” 18 U.S.C. § 3184.

         II. LEGAL STANDARD

         The process of extraditing a fugitive from the United States to Mexico is governed by the provisions of the federal extradition statute, 18 U.S.C. §§ 3181 et seq., and the Treaty between the United States and Mexico, 31 U.S.T. 5059. Under Article 1 of the Treaty, the United States and Mexico have mutually agreed to extradite fugitives who are charged with crimes in one country and subsequently found within the territory of the other. 31 U.S.T. 5059. Under Article 11 of the Treaty, once a foreign fugitive is found within the territory of the United States, Mexico may then request the provisional arrest of the fugitive through diplomatic channels. Id. The request must contain “a description of the person sought, a description of his alleged crimes, a declaration of the existence of a warrant for his arrest, and an undertaking to submit a formal request for extradition.” In re Extradition of Rodriguez Ortiz, 444 F.Supp.2d 876, 880 (N.D.III.2006) (citing the Treaty, Article 11). If a formal request for extradition and the required supporting documents are not filed within sixty days of the apprehension of the fugitive, the provisional arrest must be terminated. Id. In addition, 18 U.S.C. § 3184 authorizes a judicial officer to issue a warrant for the arrest for any fugitive whose extradition is requested, upon a sworn complaint charging the fugitive with committing an extraditable offense.

         The second stage in the extradition process is the submission of a formal request for extradition. Article 10 of the Treaty lists the required contents of a formal request for extradition, and requires that it be submitted through the appropriate diplomatic channels. In addition to the formal request, supplemental documents must be provided. Where a fugitive has not yet been convicted, the required documents include: (1) a certified copy of the warrant for the fugitive's arrest issued by a judge of the requesting party; and (2) “[e]vidence which, in accordance with the laws of the requested [p]arty, would justify the apprehension and commitment for trial of the person sought if the offense had been committed there.” (Treaty, Article 10). Article 10 further directs that these documents shall be received into evidence if they are certified by the principal consular officer of the United States in Mexico. The federal extradition statute similarly provides that documentary evidence proffered by a foreign government requesting extradition will be admissible if it is certified to be properly authenticated by the principal consular officer of the United States in the requesting country. 18 U.S.C. § 3190. See also In re Assarsson, 635 F.2d 1237, 1245-46 (7th Cir.1980).

         In order to determine whether extradition is appropriate, the authority of a magistrate judge serving as an extradition judicial officer “is limited to determining an individual's eligibility to be extradited, which is done by ascertaining (1) whether the crime is an extraditable offense under the subject treaty, and (2) whether probable cause exists to sustain the charge.” In re Extradition of Sainez, 07-MJ-0177, 2008 WL 366135, at *3 (S. D. Cal. Feb. 8, 2008) (citation omitted); see also 18 U.S.C. § 3184 (providing for extradition “[i]f, on such hearing, [the court] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention.”). If the magistrate judge determines that the charged offenses are within the treaty's terms and probable cause exists, he is to certify the matter to the Secretary of State, who has sole discretion to determine if the extradition should proceed. In re Extradition of Mazur, No. 06 M 295, 2007 WL 2122401, at *1 (N. D. Ill. July 20, 2007) (citing Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir.1981)).

         III. ANALYSIS

         Extradition is appropriate where the Court makes the following findings: (1) the judicial officer has jurisdiction to conduct an extradition proceeding; (2) the Court has jurisdiction over the fugitive; (3) the person before the Court is the fugitive named in the request for extradition; (4) there is an extradition treaty in full force and effect; (5) the crimes for which surrender is requested are covered by that treaty; and (6) there is competent legal evidence to support the finding of probable cause as to each charge for which extradition is sought. In re Extradition of Garcia, 188 F.Supp.2d 921, 925 (N.D.III.2002) (citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542 (1925)). Cruz Montes does not challenge the first five requirements and strictly focuses on probable cause. In other words, Cruz Montes contests his extradition only on the basis that there is no probable cause to charge him for the crime as to which extradition is sought. Thus, the Court turns to the sole factor that Cruz Montes challenges: whether there is competent legal evidence to support the finding of probable cause as to each charge for which extradition is sought?

         A. Probable Cause

         Cruz Montes argues that extradition should be denied because probable cause cannot be established in this case. He asserts that the Government's evidence from the two eyewitnesses to the alleged homicide in Mexico contains inconsistent statements about the facts of the case and raises doubts about the reliability of both witnesses. Cruz Montes also contends that the causation of Gonzalez's death ...


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