United States of America v. Moreno-Vazquez

Filing 56

MEMORANDUM OPINION AND ORDER that the 52 Motion to release is denied. Signed by Honorable Charles S. Coody on 11/17/08. (sl, )

IN THE UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF ALABAMA E A S T E R N DIVISION In the Matter of the Extradition of ) ) ) ) )

M A R IA del ROSARIO MORENO-VAZQUEZ a/k/a MARIA COONLEY

C I V . NO. 3:06cv761-CSC (W O )

M E M O R A N D U M OPINION AND ORDER

On August 22, 2008, upon completion of an evidentiary hearing and all other proceedings required by 18 U.S.C. § 3184, the undersigned Magistrate Judge certified to
th e Secretary of State for the United States of America that the evidence of criminality is s u f f ic ie n t, under the provisions of the Extradition Treaty between the United States and M e x ic o , May 4, 1978, T.I.A.S. No. 9656, 31 U.S.T. 5059, to sustain the charge of tra f f ick in g in minors brought by the United Mexican States against Maria del Rosario M o ren o -V az q u ez a/k/a Maria Coonley. (Docs. # 48-49). N o w pending before the court is Respondent Maria del Rosario MorenoV a z q u ez 's ("Moreno-Vazquez") motion for release from custody (doc. # 52) filed on O c to b e r 22, 2008. Moreno-Vazquez argues that she should be released from custody b e c au s e she has not been released to the Mexican authorities within two months of the C o u rt's Certificate of Extraditability and Order for Commitment (doc. # 49) entered on A u g u s t 22, 2008. The United States opposes her release. (Doc. # 54).

T h is matter is governed by 18 U.S.C. § 3188.1 W h e n e v er any person who is committed for rendition to a foreign g o v e rn m e n t to remain until delivered up in pursuance of a requisition, is not s o delivered and conveyed out of the United States within two calendar m o n th s after such commitment, over and above the time actually required to c o n v e y the prisoner from the jail to which he was committed, by the re a d ie st way, out of the United States, any judge of the United States, or of a n y State, upon application made to him by or on behalf of the person so c o m m itte d , and upon proof made to him that reasonable notice of the in te n tio n to make such application has been given to the Secretary of State, m a y order the person so committed to be discharged out of custody, unless s u f f ic ie n t cause is shown to such judge why such discharge ought not be o rd e re d . The purpose of § 3188 "was to ensure prompt action by the extraditing government a s well as by this government so that the accused would not suffer incarceration in this co u n try or uncertainty as to [her] status for long periods of time through no fault of [her] o w n ." Jimenez v. U.S. Dist. Court for the Southern Dist. of Fla., Miami Div., 84 S.Ct. 14, 1 8 (1963) (Goldberg, J., in chambers). O n August 29, 2008, Moreno-Vazquez filed a petition for writ of habeas corpus, M o r e n o -V a z q u e z v. Hardy, Civ. Act. No. 2:08cv716-MEF (M.D. Ala.), challenging the c e rtif ic a te of extraditability and the order for commitment. Her habeas petition remains p e n d in g . Consequently, the two month period contemplated by § 3188 does not c o m m e n c e until Moreno-Vazquez's habeas petition is finally adjudicated. The common-sense reading of § 3188 is that where as here, the accused has

Moreno-Vazquez initially asserted that she was entitled to release pursuant to Article 11 of the treaty between the United States and Mexico. See Doc. # 52. In her reply to the United States' response, she concedes that 18 U.S.C. § 3188 is the applicable statute. See Doc. # 55.

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in stitu ted and pursued review of [her] extradition order, the two-month p e rio d runs from the time [her] claims are finally adjudicated, not from the tim e of the original commitment order [s]he has been challenging. In any e v e n t, since the delays were attributable to the proceedings prosecuted by p e titio n e r, there certainly was `sufficient cause' for the delay, within the in te n d e d meaning of § 3188. J im e n e z, 84 S.Ct. at 18. See also Liberto v. Emery, 724 F.2d 23, 25 n.2 (2 n d Cir. 1983) (" th e two-month period does not begin to run until there has been a final adjudication of th e extradition request; [petitioner's] own habeas corpus petitions have delayed such a f in a l adjudication.") Accordingly, for the reasons as stated, it is O R D E R E D that the motion to release Respondent (doc. # 52) be and is hereby D E N IE D . D o n e this 17 th day of November, 2008.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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