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In the Matter of the Extradition of Dylan Ryan Johnson

October 17, 2012

IN THE MATTER OF THE EXTRADITION OF DYLAN RYAN JOHNSON


The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

OPINION AND ORDER

MAUREEN P. KELLY, United States Magistrate Judge.

Pending before the Court is the Complaint for Extradition [ECF No. 1] filed by the United States on behalf of the Government of Mexico. The United States seeks to extradite Dylan Ryan Johnson ("Johnson") for the aggravated homicide and rape of a 16 year old boy in the town of Empalme Escobedo, Guanajuato, Mexico, committed over nine years ago, on September 7, 2003. The Complaint alleges that extradition is warranted under the applicable Extradition Treaty between the United States of America and the United Mexican States, U.S.T. 5059 (TIAS 9656) (the "Extradition Treaty"), and that the totality of evidence presented by the Government of Mexico establishes probable cause to believe that Johnson committed the alleged offenses. Johnson contests his extradition, challenging the existence of probable cause that he committed the crimes for which he is charged, and the lapse of time between the alleged crimes and the presentation of the Formal Request for Extradition.

This Court has carefully considered the relevant provisions of the Extradition Treaty in force between the United States and Mexico, the Formal Request for Extradition, the exhibits submitted by Mexico in support of the extradition request, the other written submissions of the parties, and the arguments made by counsel during the extradition hearing on August 3, 2012.

For the reasons that follow, the Court finds that there is competent evidence to sustain a finding of probable cause as to the criminal charges presented and that extradition is warranted.

I. THE EXTRADITION PROCESS AND APPLICABLE LEGAL STANDARD

Extradition is a diplomatic process initiated by a request from the nation seeking extradition submitted to the United States Department of State. If a foreign country files a sworn complaint charging an individual found within the jurisdiction of the United States of a crime punishable by imprisonment of more than one year, and if there is an extradition treaty between the United States and the requesting foreign government, then the authority of a magistrate judge serving as an extradition judicial officer is limited to determining an individual's eligibility to be extradited. 18 U.S.C. § 3184. This is done by ascertaining whether (1) the crime is an extraditable offense under the subject treaty; and (2) whether there is probable cause to sustain the charge. Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir. 2000). Upon such a finding, the judge is required to certify to the Secretary of State that extradition is appropriate. The judicial officer "has no discretionary decision to make," for it is the executive branch, through the Secretary of State, that controls the ultimate decision regarding whether the charged individual should be surrendered to the requesting country. 18 U.S.C. §§ 3184, 3186. However, should the magistrate judge determine that "the offense charged is not within a treaty's terms or finds an absence of probable cause, the magistrate cannot certify the matter to the Secretary of State for extradition." United States v. Nolan, 651 F. Supp.2d 784 ,790 (N.D. Ill. 2009), quoting Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1981).

"It is well settled that the terms of an extradition treaty should be liberally construed so as to effect the intention of the parties to secure the open and reciprocal surrender of fugitives to be tried for extraditable offenses." In re Extradition of Rodriguez Ortiz, 444 F. Supp.2d 876, 883 (N.D. Ill. 2006) (citing Factor v. Laubenheimer, 290 U.S. 276, 293-94 (1933)). The process for extradition is set forth by statute and the relevant treaty. Here, the Treaty between the United States and Mexico provides that the parties mutually agree to extradite fugitives who are charged with crimes in one country and subsequently found within the territory of the other. Extradition Treaty, U.S.-Mex., art.1, May 4, 1978, 31 U.S.T. 5059.

The required documents for extradition of a fugitive not yet convicted in the foreign country but located within the United States include a certified copy of the warrant for the fugitive's arrest issued by a judge of the requesting party, and "[e]vidence which, in accordance with the laws of the requested Party, would justify the apprehension and commitment for trial of the person sought if the offense had been committed there." Id. Documentary evidence proffered by the Mexican government shall be admissible in evidence if it is properly authenticated and certified by the principal consular officer of the United States in Mexico. Id., 18 U.S.C. § 3190. Appropriate documentation typically includes authenticated statements, see, Sainez v. Venables, 588 F.3d 713, 717 (9th Cir. 2009) (certification of extradition based on sworn statements); or, pursuant to 18 U.S.C. § 3190, may include "[d]epositions, warrants, or other papers" if "properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped."

The individual whose extradition is sought has limited evidentiary rights. He or she has no right to cross-examine witnesses, and generally may present only "evidence that explains away or completely obliterates probable cause;" "evidence that merely controverts the existence of probable cause, or raises a defense, is not admissible." Barapind v. Enomoto, 400 F.3d 744, 749 (9th Cir. 2005) (citation and quotation marks omitted) (quoting Mainero v. Gregg, 164 F.3d 1199, 1207 n. 7 (9th Cir. 1999)). Thus, the individual facing extradition is limited to presenting "'reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause.'" Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991) (citation omitted).

The judicial officer, after receiving the evidence, makes no determination of guilt or innocence, for "guilt remains to be determined in the courts of the demanding country." Sainez v. Venables, 588 F.3d at 717. Where the judge determines that the evidence is sufficient to find probable cause and warrant extradition, the judge then certifies to the Secretary of State that the fugitive may be detained and surrendered to the requesting country and forwards all the evidence to the Secretary of State. 18 U.S.C. § 3184. If the fugitive was released on bail from provisional arrest, the judge must also issue a warrant for the commitment of the fugitive until surrender to Mexico can be made. 18 U.S. C. § 3184. "The ultimate decision to extradite is a matter within the exclusive prerogative of the Executive in the exercise of its powers to conduct foreign affairs." Esobedo v. United States, 623 F.2d 1098 (5th Cir. 1980). Thus, the executive branch, through the Secretary of State, is the final arbiter of whether an individual will be detained in the United States and delivered to the requesting foreign county. See, 18 U.S.C. § 3186. If extradition is granted, surrender shall then be made at such time and place as determined according to the law of the required country. Extradition Treaty, U.S.-Mex., art 3, May 4, 1978, 31 U.S.T. 5059.

II. BACKGROUND

A. Procedural History

On July 8, 2011,*fn1 Arturo Sarukhan, the Mexican Ambassador to the United States, forwarded a Formal Request for International Extradition Purposes to the United States Secretary of State. The Formal Request served to notify Secretary Hilary Rodham Clinton that Dylan Ryan Johnson, a fugitive wanted in Mexico for the crimes of Aggravated Homicide and Rape, had been located by the U.S. Marshal's Service in the Commonwealth of Pennsylvania. The Formal Request was predicated upon an arrest warrant issued on December 8, 2003, as part of criminal case number 89/2003, by the Judge of First Instance for Civil and Criminal Matters of the Judicial District of Comonfort, Guanajuato. [ECF No. 16]. On May 2, 2011, Graciela Lopez Cruz, the Agent of the Office of the Federal Public Prosecutor assigned to the General Division of Extraditions, certified that the arrest warrant was sufficient under applicable Mexican law to support a formal request for extradition of Johnson. [Affidavit in Support of Extradition, ECF No.18]. In accordance with 18 U.S.C. § 3190, the affidavit and accompanying documents were submitted by the Government of Mexico to John D. Feeley, Charge D'Affairs, of the United States Embassy in Mexico, who, on June 7, 2011, certified the documentation as authentic.

Pursuant to the Formal Request, on February 2, 2012, the United States filed a Complaint for Extradition [ECF No. 1], as well as a Motion to Detain Fugitive [ECF No. 9]. In conjunction with the filing of the Complaint, Johnson was arrested at his home in Greene County, Pennsylvania. Upon consideration of the Motion to Detain Fugitive and the Memorandum of Law filed in support thereof, on February 8, 2012, the Court entered an Order granting the motion, and indicated that Johnson would be permitted to present evidence of special circumstances as to detention, if warranted or necessary. [ECF No. 10]. Johnson subsequently filed a Motion to Revoke Order of Detention, seeking his release pending the entry of a final order for extradition from the Secretary of State. [ECF No. 26]. A hearing as to both the Formal Request for Extradition and the Motion to Revoke Order of Detention occurred on August 3, 2012, with the presentation of argument by counsel for both the United States and Johnson. Following the hearing, counsel for Johnson and the United States were permitted to and filed post-hearing memoranda. On September 7, 2012, this Court issued an Opinion and Order denying the Motion to Release on Bail. [ECF No. 37].

B. Evidence Presented

As set forth in the Formal Request for Extradition, and the Complaint filed on behalf of the United States in aid of Johnson's extradition, Johnson is accused of raping and strangling to death a 16 year old boy identified as Hilario Garcia Rosales on September 7, 2003. The crimes are alleged to have taken place ...


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