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In re Extradition of Caro

United States District Court, D. Colorado

October 19, 2017

IN THE MATTER OF THE EXTRADITION OF GABRIEL RODRIGUEZ CARO, a/k/a “EL GÜERO”

          MEMORANDUM OPINION AND ORDER

          KATHLEEN M. TAFOYA, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the court on the Extradition Request filed by the United States on behalf of the United Mexican States (“Mexico”), seeking to extradite Respondent Gabriel Rodriguez Caro, a United States citizen, to Mexico for the aggravated kidnapping of Marlene Paola Ramos Ortega. For the reasons set forth below, the Extradition Request is GRANTED, and Respondent is CERTIFIED as extraditable.

         APPLICABLE LAW

         A request by Mexico to extradite an individual from the United States to that foreign country is governed by the provisions of the federal extradition statute, 18 U.S.C. §§ 3181-3196, and the Extradition Treaty Between the United States of America and the United Mexican States dated May 4, 1978, 31 U.S.T. 5059, TIAS 9656 (“Extradition Treaty”). The extradition process is initiated by Complaint for Arrest for the purposes of Extradition filed by the United States of America (“United States” or “Government”), and an arrest warrant. 18 U.S.C. § 3184. Pursuant to the Extradition Treaty, the diplomatic note and the other supporting documentation were bates labeled with pages 1- 651 and timely produced to the Respondent on May 24, 2017. [Doc. No. 25 at 1.] See In re Extradition of Figueroa, Case No. 12-M-269, 2013 WL 3243096, at *2 (N.D. Ill. June 26, 2013). Article 10 of the Extradition Treaty requires the formal extradition request to include the following:

a) A statement of the facts of the case;
b) The text of the legal provisions describing the essential elements of the offense;
c) The text of the legal provisions describing the punishment for the offense;
d) The text of the legal provisions relating to the time limit on the prosecution or the execution of the punishment of the offense;
e) The facts and personal information of the person sought which will permit his identification and, where possible, information concerning his location.

[Doc. No. 25-1, 26]. In addition, when the extradition request relates to an individual who has not yet been convicted of a crime, it must also include (1) a certified copy of the warrant of arrest issued by a judge or other judicial officer of the requesting Party; and (2) evidence 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. at ¶ 3]. According to the Extradition Treaty, the documents from Mexico must be presented in English, the language of the United States. [Id. at ¶ 5].

         The next phase of the extradition process is the extradition hearing, which is conducted by the federal court to consider the evidence presented by Mexico through the United States. The extradition hearing is not a criminal trial, and the Federal Rules of Criminal Procedure do not apply. Fed. R. Crim. P. 1. Rather, the purpose of such hearing is to determine whether there is competent evidence to justify holding the individual to await trial, and not to determine whether the evidence is sufficient to justify a conviction. See Peters v. Egnor, 888 F.2d 713, 717 (10th Cir. 1989). Specifically, under the federal extradition statute, this court hears evidence and determines whether the evidence presented is sufficient to support a finding of probable cause that the person charged committed the extraditable offense. 18 U.S.C. § 3184; In re Extradition of Vargas, 978 F.Supp.2d 734, 739 (S.D. Tex. 2013). The court is not authorized under the Extradition Treaty to make a finding of guilt or innocence, and therefore, the Government is not required to present evidence sufficient to convict.

         Several principles guide this court's inquiry at the extradition hearing. First, extradition treaties, unlike criminal statutes, are generally construed liberally in favor of enforcement. See Factor v. Laubenheimer, 290 U.S. 276, 293-94 (1933) (“In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international agreements. Considerations which should govern the diplomatic relations between nations, and the good faith of treaties, as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them.”)

         Next, under the rule of non-inquiry, the court refrains from investigating the fairness of Mexico's justice system, and from inquiring into the procedures or treatment which await Respondent if he is returned to Mexico. See Smith v. United States, 82 F.3d 964, 965 (10th Cir. 1996); In re Extradition of Chan Seong-I, 346 F.Supp.2d 1149, 1157 (D.N.M. 2004). Under the general rule of non-contradiction, Respondent has no right to pose questions of credibility regarding Mexico's witnesses, but only to explain away or completely rebut probable cause for the purpose of the extradition hearing. In re Extradition Vargas, 978 F.Supp.2d at 748.

         Also, the Federal Rules of Evidence do not control the admissibility of evidence in an extradition hearing. See Fed. R. Evid. 1101(d). Instead, under federal extradition law, the admissibility of evidence is controlled by 18 U.S.C. § 3190 and the Extradition Treaty. Section 3190 provides:

Depositions, [1] warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be 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, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required.

18 U.S.C. § 3190. Article 10(6)(b) of the Extradition Treaty provides:

In the case of a request emanating from the United Mexican States, they are certified by the principle [sic] diplomatic or consular officer of the United States in Mexico.

[Doc. No. 25-1, 27 at ¶ 6(b)]. Once the papers are certified by the diplomatic officer, they are considered properly authenticated and admissible. See Collins v. Loisel, 259 U.S. 309, 314 (1922). Neither federal criminal law, nor state criminal law, has any import on the admissibility of documents for the purpose of proving probable cause in an extradition hearing. See Escobedo, 623 F.2d at 1103.

         If a court determines that there is probable cause to support the underlying charge, the decision to extradite is left to the discretion of the Secretary of State. See 18 U.S.C. § 3186. Therefore, it is the Secretary of State, not this court, who considers whether an extradition request should be denied due to humanitarian concerns.[2] See In re Extradition Mathison, 974 F.Supp.2d 1296, 1315 (D. Or. 2013).

         Against this legal background, this court now turns to the request to extradite Gabriel Rodriguez Caro a/k/a “El Guero” to Mexico for the aggravated kidnapping of Marlene Paola Ramos Ortega on August 5, 2014.

         FACTUAL BACKGROUND

         According to the warrant of arrest the following are the facts of the case:

On August 5, 2014, Patricia Ortega Amparan and Ramiro Ramos Peregrino initiated a complaint regarding their daughter, Ramos Ortega, with whom they had last been in contact on August 1, 2014. Ortega Amparan and Ramos Peregrino advised that at about 7:23 a.m. on August 2, 2014, they received a text message that read, “we have kidnapped your daughter pay up or we will kill her do not talk to the police or we will kill her.” At 12:09 p.m. the same day, they received a telephone call in which the kidnappers requested 350, 000 Mexican pesos for the ransom of Ramos Ortega.

         According to Ortega Amparan and Ramos Peregrino, ransom negotiations continued until August 4, 2014, when the kidnappers agreed to accept 62, 550 Mexican pesos for the ransom of Ramos Ortega. The kidnappers instructed Ortega Amparan and Ramos Peregrino to put the money, along with cell phones, jewels, and laptops, inside a bag, go to a specified location, and then call the kidnappers in order to agree on a subsequent location to deliver the ransom. At the same time, the kidnappers said they would hand over Ramos Ortega. Ramos Peregrino arrived at the location at approximately 11:00 p.m., dialed the kidnappers cell phone, and did as instructed. Approximately 25 minutes after hanging up with the kidnappers, Ramos Peregrino received a telephone call from the police telling him that they had apprehended Marcos Humberto Reyes Reyes, who had picked up the bag containing the ransom money, and informed her parents that Ramos Ortega had been murdered.

         On November 9, 2014, after having been a fugitive for a period of time, Ivan Gonzalez Rodriguez (a/k/a el negro), a confessed member of the group who kidnapped and killed Ramos Ortega, provided a confession to the Public Prosecutor from the Office of the Attorney General of the State of Chihuahua. In his confession, González Rodríguez stated that on August 1, 2014, he and Rodríguez Caro decided to kidnap Ramos Ortega. In accordance with the plan, Rodríguez Caro called Ramos Ortega and asked her to accompany him to collect money he was owed. Ramos Ortega agreed to meet Rodríguez Caro at an agreed location at 4:30 p.m. on that date. Rodríguez Caro and González Rodríguez went to the location, and ultimate victim Ramos Ortega picked them up in her car. The group then picked up Marcos Humberto Reyes Reyes and went to a residence under the pretense that they were going to talk. Once at the residence, Marcos Humberto Reyes Reyes struck Ramos Ortega in the head with a bottle, and Rodríguez Caro and González Rodríguez tied her feet, arms, and head with tape. Rodríguez Caro also took Ramos Ortega's wallet and cellular telephone. González Rodríguez further stated that on August 2, 2014, Marcos Humberto Reyes Reyes called Ramos Ortega's parents to demand ransom for their daughter.

         Marcos Humberto Reyes Reyes and Rodríguez Caro engaged in additional ransom negotiations with the victim's parents. On August 3, 2014, González Rodríguez, Marcos Humberto Reyes Reyes, and Rodríguez Caro killed Ramos Ortega by placing plastic bags over her face and strangling her with cables. According to González Rodríguez, on August 4, 2014, Ramos Ortega's parents requested proof that Ramos Ortega was alive. González Rodríguez, Marcos Humberto Reyes Reyes, and Rodríguez Caro took two photographs of Ramos Ortega and Rodríguez Caro sent them to Ramos Ortega's parents to convince them that their daughter was alive. Ramos Ortega's parents agreed to deliver the ransom money. Marcos Humberto Reyes Reyes, accompanied by his two sisters, Jennifer Reyes Reyes and Itzel Reyes Reyes, went to the agreed location to pick up the ransom. Rodríguez Caro and González Rodríguez remained hidden. Rodriguez Caro and González Rodriguez fled the scene when Marcos Humberto Reyes Reyes was arrested.

         After his arrest at the scene of the ransom drop, on August 6, 2014, Marcos Humberto Reyes Reyes provided a sworn statement to the Public Prosecutor. Marcos Humberto Reyes Reyes advised that on August 1, 2014, Rodríguez Caro asked him for assistance in picking up a bag with money from a ransom for a girl (Ramos Ortega). According to Marcos Humberto Reyes Reyes, Ramos Ortega was held captive at a residence with her hands, feet, eyes, and mouth bound by tape. Marcos Humberto Reyes Reyes stated that Ramos Ortega was killed because she knew both Rodríguez Caro and González Rodríguez because they were her neighbors.

         According to Marcos Humberto Reyes Reyes, on August 4, 2014, Rodríguez Caro instructed Marcos Humberto Reyes Reyes to pick up the bag with the ransom money. Marcos Humberto Reyes Reyes asked his sisters, Jennifer Reyes Reyes and Itzel Arely Reyes Reyes, to accompany him. When they arrived at the location to ...


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