United States of America v. Edgar Orlando Camelo Grillo

Filing 32

CERTIFICATION OF EXTRADITABILITY [Dkt. No. 20 ]. IT IS HEREBY CERTIFIED TO THE SECRETARY OF STATE that the evidence against Edgar Orlando Camelo-Grillo is sufficient to sustain the charge of murder against him in Colombia under the applicable Treaty and protocol; that Camelo-Grillo is extraditable under the aforesaid Treaty and protocol; and that further proceedings in extradition may be conducted. THIS COURT HEREBY CERTIFIES that it has found Edgar Orlando Camelo-Grillo extraditable to the Rep ublic of Colombia. A warrant may be issued, upon the requisition of the proper authorities of the Republic of Colombia, for the surrender of Edgar Orlando Camelo-Grillo according to the Extradition Treaty. IT IS FURTHER ORDERED that Edgar Orlando Cam elo-Grillo is committed to the custody of the United States Marshal, to be confined without bail until the surrender of Edgar Orlando Camelo-Grillo to the Government of Colombia can be effectuated. 18 U.S.C. § 3184. IT IS FURTHER ORDERED that th e United States Attorney for the Central District of California shall obtain all testimony and exhibits presented before this Court and shall deliver forthwith the transcripts and evidence to the Clerk of the Court. The Clerk of the Court shall forward to the Secretary of State a copy of this Certification and Order together with the transcripts of testimony and copies of documents received as evidence.(See document for further details). (mr)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

IN RE THE MATTER OF THE

Case No. CV 16-9026 JVS (SS)

12

EXTRADITION OF EDGAR ORLANDO

CERTIFICATION OF

13

CAMELO-GRILLO

EXTRADITABILITY
[Dkt. No. 20]

14
15
16

I.

17

INTRODUCTION

18
19

This is a proceeding under 18 U.S.C. § 3184 pursuant to a

20

request by the Republic of Colombia (“Colombia”), through the

21

United States Government (“the Government”), for the extradition

22

of

23

Grillo”) under the provisions of the Treaty of Extradition between

24

the United States of America and the Republic of Colombia, signed

25

on September 14, 1979, S. Treaty Doc. No. 97-8 (1981) (“Treaty”).

Colombian

national

Edgar

Orlando

Camelo-Grillo

(“Camelo-

26
27

On December 6, 2016, the Government filed a Request for

28

Extradition, (“Request,” Dkt. No. 16), supported by three multi-

1

document exhibits.1

(Dkt. No. 17).

On January 13, 2017, the

2

Government filed a Memorandum of Law in Support of Extradition.

3

(“Memo.,” Dkt. No. 20).

4

16, 2017.

5

March 27, 2017, including one multi-document exhibit.2

6

Dkt. No. 25).

Camelo-Grillo filed an Opposition on March

(“Opp.,” Dkt. No. 24).

The Government filed a Reply on
(“Reply,”

On June 6, 2017, the Court conducted a hearing

7
8
9
10
11
12
13
14
15

Exhibit A contains the declaration of Tom Heinemann, a legal
adviser in the Office of the Legal Adviser for the Department of
State (“Heinemann Decl.”). Attached to the Heinemann declaration
are copies of the diplomatic notes formally requesting CameloGrillo’s extradition and the Treaty pursuant to which extradition
is sought. (Request at 1). Exhibit B comprises the documentary
evidence, in the original Spanish, that accompanied Colombia’s
extradition request to the State Department.
(Id.).
Finally,
Exhibit C is an English translation of the documents in Exhibit B.
(Id.).
1

18

The Court will cite to these Exhibits simply as “Exh. A,” “Exh.
B,” and “Exh. C” without any further qualifier.
Exhibit C is
consecutively paginated, but Exhibit A is not. Accordingly, the
Court’s citations to the attachments to Heinmann’s declaration in
Exhibit A will be to the CM/ECF page numbers for that Exhibit in
Dkt. No. 17.

19

2

16
17

20
21
22
23
24
25
26
27
28

Exhibit A to the Reply contains a diplomatic note to which are
attached (1) a request for a legal opinion letter sent by the
Colombian Ministry of Justice and Law to the International Legal
Affairs division of the Colombian Ministry of Foreign Affairs; and
(2) a letter by Judge Jorge Enrique Blanco Diagama of the Colombian
Court of Execution of Sentences and Precautionary Measures
regarding whether Camelo-Grillo’s retrial in 2001 constituted
double jeopardy under Colombian law. As submitted, the documents,
all in the original Spanish, were neither authenticated nor
accompanied by an English translation. However, on May 17, 2017,
the Government filed a “Notice of Manual Filing” that certified
the authenticity of the documents submitted with the Reply and
provided English translations.
(Dkt. No. 28).
Accordingly,
citations to Exhibit A of the Reply will be to the translations at
Dkt. No. 28 (“Reply Exh. A”).
Because Reply Exhibit A is not
consecutively paginated, the Court will use the CM/ECF numbers.
2

1

pursuant to 18 U.S.C. § 3184.3

2

the Court hereby CERTIFIES to the Secretary of State of the United

3

States

4

offenses.

the

extraditability

For the reasons set forth below,

of

Camelo-Grillo

on

the

charged

5
6

II.

7

BACKGROUND FACTS

8
9

The instant extradition request arises from a 2001 decision

10

of the Special Criminal Circuit Court 6 in the Judicial District

11

of Bogota.

12

on July 11, 1992, three drive-by shooters in Bogota, Colombia

13

killed a man named John Henry Cely-Pinilla and fled.

14

88, 90, 92).

15

Gutierrez-Garcia and Juan Sepulveda-Enciso, tipped off by a witness

16

who saw where the shooters had taken refuge, arrived at a nearby

17

residence in pursuit of the killers.

18

the officers from inside the home, one of which struck and killed

19

Officer Gutierrez-Garcia.

20

Baron-Salazar followed a trail of blood up to the third floor of

21

the home and concluded that one of the home’s occupants had leapt

22

through an open window to a neighboring residence.

23

There Lieutenant Baron-Salazar found Camelo-Grillo, injured and

24

bloodied, with a revolver, five cartridges and a grenade.

25
26
27
28

According to the facts set forth in that decision, late

(Exh. C at

Shortly thereafter, police officers Julio Cesar

(Id.).

(Id. at 88, 90).

Shots were fired at

Lieutenant Leonardo

(Id. at 90).

(Id. at

At the hearing, the Court afforded the Parties an opportunity to
submit additional briefing on whether Camelo-Grillo’s asylum
application is a bar to his extradition, as counsel had contended
during oral argument. On June 27, 2017, Camelo-Grillo’s counsel
filed a “Status Report” conceding that the asylum application “does
not present a viable defense to extradition.” (Dkt. No. 30 at 1).
3

3

1

90-91, 93).

Cely-Pinilla’s brother, an eyewitness to the drive-by

2

shooting, later identified Camelo-Grillo as one of the shooters in

3

the vehicle.

(Id. at 92).

4
5

One year later, on July 12, 1993, a criminal court convicted

6

Camelo-Grillo of the murders of Cely-Pinilla and Officer Gutierrez-

7

Garcia, and of illegal carriage of weapons, and sentenced him to a

8

sixteen-year prison term.

9

1993 decision)).
the

trial

(Id. at 88; see also id. at 62-69 (July

Three months later, on September 15, 1993,

10

despite

court’s

certainty

that

Camelo-Grillo

had

11

committed both murders, a reviewing court vacated the conviction

12

for the murder of Cely-Pinilla because the indictment did not

13

properly lay out charges for that crime.

14

at 70-83 (September 1993 decision)).

15

affirmed the convictions for the murder of Officer Gutierrez-Garcia

16

and for illegal carriage of weapons.

17

reduced Camelo-Grillo’s sentence to a term of ten years and three

18

months on those two surviving convictions.

(Id. at 88; see also id.

At the same time, the court

(Id. at 83).

The court then

(Id.).

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20

Just under two years later, on July 26, 1995, the Colombian

21

Supreme Court of Justice, Criminal Cassation Bench, vacated Camelo-

22

Grillo’s original murder convictions on procedural grounds.

23

at 89; see also id. at 41-52 (July 1995 decision)).

24

the court, Camelo-Grillo’s case should have been assigned to a

25

newly-created “jurisdiction, which was assigned the duties of

26

investigation and trial” for certain “special” matters, including

27
28
4

(Id.

According to

1

homicides of police personnel.4

2

of the murder investigation to the proper tribunal, the court

3

granted

4

contingent

5

“commitment” as provided in Article 419 of the Colombian Criminal

6

Procedure Code.

Camelo-Grillo
on

the

“the

lodgment

(Id. at 45).

benefit
of

a

of

Pending reassignment

provisional

surety

and

his

release”
signing

a

(Id. at 50).

7
8

The Colombian Special Terrorism Unit issued an indictment

9

against Camelo-Grillo on April 16, 1996 for the crime of homicide

10

“under Article 8 of Decree 2790/1990, amended by Article 1 of

11

Decree 099/1991[,] and Article 2.2 of Decree 2326/1991, adopted as

12

permanent legislation under Article 12 of Decree 2266/1991.”

13

at 89).

14

on April 18, 2001, (id.), and on May 8, 2001, convicted Camelo-

15

Grillo in absentia of the murder of Officer Gutierrez-Garcia.

16

at 88) (stating that the public hearing in Camelo-Grillo’s 2001

17

“criminal trial [was] conducted in his absence”).

18

sentenced Camelo-Grillo to a fifteen-year term of imprisonment,

19

“taking account of the time during which he [had previously been]

20

detained due to this case.”

21

on September 18, 2001, (id. at 86-87), and appear to have been re-

22

issued by the Sentences and Precautionary Measures Court in Bogota

23

several times, including on April 12, 2013, (id. at 12-13), and

24

June 9, 2014. (Id. at 14-15).

(Id.

Special Criminal Court 6 in Bogota held a public hearing

(Id. at 96).

(Id.

The court

Arrest warrants issued

The Government represents, and

25
26
27
28

While the Supreme Court declared the murder convictions a nullity,
it affirmed the conviction for unlawful carriage of weapons because
the “investigation and trial of which [Camelo-Grillo] was the
object was pursued by the natural and originally competent
authority” on that count. (Id. at 46).
4

5

1

Camelo-Grillo does not dispute, that the warrants “remain active

2

and enforceable.”

(Memo. at 3).

3
4

On June 9, 2015, Colombia tendered a diplomatic note to the

5

Department of State requesting Camelo-Grillo’s extradition to serve

6

the

7

murder.

8

the Government filed a complaint in this Court for Camelo-Grillo’s

9

arrest and extradition.

remainder

of

his

(Exh. A at 5).

sentence

for

Officer

Gutierrez-Garcia’s

Fourteen months later, on August 12, 2016,

See United States v. Edgar Orlando Camelo-

10

Grillo, C.D. Cal. Case No. M 16-1621 DUTY, Dkt. No. 1.5

11

Grillo was captured in Los Angeles three days later, on August 15,

12

2016.

13

another diplomatic note to the State Department, (id. at 6), to

14

which it attached a letter from the Execution of Sentences and

15

Precautionary

16

Government’s question in a “Verbal Note of September 12, 2016”

17

concerning the statute of limitations in Camelo-Grillo’s case.

18

(Id. at 7-8).

19

December 6, 2016.

(Exh. A at 7).

Measures

Camelo-

On September 29, 2016, Colombia submitted

Court

24

in

Bogota

responding

to

the

The instant Request for Extradition followed on

20
21

III.

22

LEGAL STANDARDS

23
24

“‘Extradition from the United States is a diplomatic process’

25

that is initiated when a foreign nation requests extradition of an

26

individual from the State Department.”

Manta v. Chertoff, 518 F.3d

27
That action was consolidated with the instant action on December
6, 2016 upon the filing of the Request.
5

28

6

1

1134, 1140 (9th Cir. 2008) (quoting Prasoprat v. Benov, 421 F.3d

2

1009, 1010 (9th Cir. 2005)).

3

of foreign policy entirely within the discretion of the executive

4

branch, except to the extent that the statute [18 U.S.C. § 3184]

5

interposes a judicial function.”

6

(9th Cir. 2006).

7

extradition process, and the judiciary’s limited role in it, as

8

follows:

As such, “[e]xtradition is a matter

Vo v. Benov, 447 F.3d 1235, 1237

The Ninth Circuit has recently summarized the

9
10

The

process

begins

11

extradition

12

Department of State.

13

that the request falls within the governing extradition

14

treaty, a U.S. Attorney files a complaint in federal

15

district court indicating an intent to extradite and

16

seeking a provisional warrant for the person sought.

17

See [Vo, 447 F.3d at 1237]; see also 18 U.S.C. § 3184.

18

Once the warrant is issued, the district court, which

19

may include a magistrate judge, conducts a hearing to

20

determine “whether there is

21

sustain the charge under the provisions of the proper

22

treaty or convention,’ or, in other words, whether there

23

is probable cause.”

24

part 18 U.S.C. § 3184).

makes

when
a

the

request

foreign

state

directly

to

seeking

the

U.S.

If the State Department determines

‘evidence sufficient to

Vo, 447 F.3d at 1237 (quoting in

25
26

The

Supreme

Court

27

hearings to determine probable cause as akin to a grand

28

jury

investigation

has

or

described

a

these

preliminary
7

extradition

hearing

under

1

Federal Rule of Criminal Procedure 5.1.

2

Charlton v. Kelly, 229 U.S. 447, 461–62, 33 S. Ct. 945,

3

57 L. Ed. 1274 (1913); Benson v. McMahon, 127 U.S. 457,

4

463, 8 S. Ct. 1240, 32 L. Ed. 234 (1888); [Ronald J.

5

Hedges, International Extradition:

6

(Federal

7

10. . . . We have said that the extradition court’s

8

review is limited to determining, first, whether the

9

crime of which the person is accused is extraditable,

Judicial

Center

2014)

See, e.g.,

A Guide for Judges
(“FJC

Manual”)]

at

10

that is, whether it falls within the

11

extradition treaty between the United States and the

12

requesting state, and second, whether there is probable

13

cause to believe the person committed the crime charged.

14

See, e.g., Cornejo–Barreto v. Seifert, 218 F.3d 1004,

15

1009 (9th Cir. 2000), overruled on other grounds by

16

Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir.

17

2012) (en banc); see also Zanazanian v. United States,

18

729 F.2d 624, 625–26 (9th Cir. 1984) (describing the

19

inquiry

20

jurisdiction to conduct proceedings; [2] the extradition

21

court

22

extradition treaty was in full force and effect; [4] the

23

crime fell within the terms of the treaty; and [5] there

24

was competent legal evidence to support a finding of

25

extraditability”).

as

had

“whether:

[1]

jurisdiction

the

over

terms of the

extradition

the

fugitive;

judge

[3]

had

the

26
27

[¶] . . . [T]he scope of the extradition court’s review

28

“is limited to a narrow set of issues concerning the
8

1

existence of a treaty, the offense charged, and the

2

quantum of evidence offered.

3

extradition and its consequences is committed to the

4

Secretary of State.”

5

F.3d 103, 110 (1st Cir. 1997)]. . . . [C]ourts have

6

emphasized that “[t]he person charged is not to be tried

7

in

8

committed in the requesting country.

9

of the . . . courts of the other country.”

this

country

for

The larger assessment of

[United States v. Kin–Hong, 110

crimes

he

is

alleged

to

have

That is the task
[Eain v.

10

Wilkes, 641 F.2d 504, 508 (7th Cir. 1981)]; see FJC

11

Manual at 10 (“An extradition hearing is not a criminal

12

trial and is not intended to ascertain guilt.”).

13

long as “the judicial officer determines that there is

14

probable

15

individual as extraditable to the Secretary of State.’”

16

Vo, 447 F.3d at 1237 (quoting Blaxland v. Commonwealth

17

Dir. of Pub. Prosecutions, 323 F.3d 1198, 1208 (9th Cir.

18

2003)).

cause,

he

‘is

required

to

certify

So

the

19
20

Given the limited nature of extradition proceedings,

21

neither the Federal Rules of Evidence nor the Federal

22

Rules of Criminal Procedure apply. See Mainero v. Gregg,

23

164 F.3d 1199, 1206 (9th Cir. 1999); see also Fed. R.

24

Crim. P. 1(a)(5)(A).

25

that evidence may be admitted as long as the evidence is

26

authenticated

27

purposes by the tribunals of the foreign country from

28

which

the

and

accused

Instead, 18 U.S.C. § 3190 provides

would

party

“be

shall
9

received

have

for

similar

escaped.”

The

1

accused, however, does not have the right to introduce

2

evidence

3

government seeking his extradition “to go into a full

4

trial on the merits in a foreign country.”

5

Loisel, 259 U.S. 309, 316 (1922)] (quoting In re Wadge,

6

15 F. 864, 866 (S.D. N.Y. 1883)). . . . [¶]

in

defense

because

that

would

require

the

[Collins v.

7
8

If

the

9

probable

extradition
cause

to

court

determines

extradite,

it

that

enters

there
an

is

order

10

certifying extradition to the Secretary of State, who

11

ultimately decides whether to surrender the individual

12

to the requesting state.

13

at 1237; [Quinn v. Robinson, 783 F.2d 776, 789 (9th Cir.

14

1986)]; Exec. Order No. 11,517, 35 Fed. Reg. 4,937 (Mar.

15

19, 1970), reprinted in 18 U.S.C. § 3193 Historical &

16

Revision Notes.

18 U.S.C. § 3186; Vo, 447 F.3d

17
18

Santos v. Thomas, 830 F.3d 987, 991–93 (9th Cir. 2016) (en banc);

19

see also Manta, 518 F.3d at 1140 (the court “must certify the

20

extradition” if it concludes that “the crime is extraditable” and

21

that

22

certification of extradibility “can only be challenged via a writ

23

of habeas corpus, because the order is not final and there is no

24

other statutory provision for direct appeal of an extradition

25

order.”

26

\\

27

\\

28

\\

“there

is

probable

cause

Santos, 830 F.3d at 993.

10

to

sustain

the

charge”).

A

1

IV.

2

DISCUSSION

3
4

For the court to certify that Camelo-Grillo is extraditable,

5

the Government must establish that “(1) the extradition judge ha[s]

6

jurisdiction to conduct proceedings; (2) the extradition court

7

ha[s] jurisdiction over the fugitive; (3) the extradition treaty

8

[is] in full force and effect; (4) the crime [falls] within the

9

terms of the treaty; and (5) there [is] competent legal evidence

10

to support a finding of extraditability.”

Manta, 518 F.3d at 1140;

11

see also Santos, 830 F.3d at 991 (citing Zanazian, 729 F.2d at 625-

12

26)).

All of these criteria are satisfied here.

13
14

A.

Authority Of Judicial Officer

15
16

Section 3184 provides that a magistrate judge is competent to

17

hold the hearing required under the statute when “authorized to do

18

so by a court of the United States.”

19

Santos, 830 F.3d at 991 (the district court, “which may include a

20

magistrate

21

hearing).

22

delegates the authority to hear extradition matters to magistrate

23

judges.

24

extradition proceedings.

25

\\

26

\\

27

\\

28

\\

18 U.S.C. § 3184; see also

judge,”

is

charged

with

conducting

Here,

the

Central

District’s

a

General

section

3184

Order

05-07

Accordingly, the undersigned is authorized to conduct

11

1

B.

Jurisdiction Over The Individual Sought

2
3

A district court has jurisdiction over a fugitive found within

4

its jurisdictional boundaries.

See 18 U.S.C. § 3184 (a judge “may,

5

upon complaint made under oath, charging any person found within

6

his jurisdiction, . . . issue his warrant for the apprehension of

7

the person so charged”); see also Caplan v. Vokes, 649 F.2d 1336,

8

1338 n.2 (9th Cir. 1981) (same); accord Cohen v. Benov, 374 F.

9

Supp. 2d 850, 855 (C.D. Cal. 2005).

It is undisputed that Camelo-

10

Grillo was arrested in Los Angeles, and thus was “found” in this

11

district.

12

Grillo, C.D. Cal. Case No. M 16-1621 DUTY.

13

has personal jurisdiction over Camelo-Grillo.

See generally United States v. Edgar Orlando CameloAccordingly, the Court

14
15

C.

Treaty In Full Force And Effect

16
17

Section 3184 conditions extradition on the existence of a

18

valid treaty between the United States and the foreign government.

19

Tom Heinemann, of the Office of the Legal Adviser for the Department

20

of State, affirms in his declaration that the extradition treaty

21

between the United States and Colombia is “in full force and

22

effect.”

23

The State Department’s determination of the continuing validity of

24

a treaty is entitled to deference.

25

851,

26

extradition treaty “presents a political question” for the State

27

Departments of the two countries, whose decisions on the matter

28

are controlling).

854

(Heinemann Decl. ¶ 3; see also Exh. A at 11-25 (Treaty)).

(9th

Cir.

1996)

(the

See Then v. Melendez, 92 F.3d
“continuing

validity”

of

an

The Ninth Circuit instructs that “the exchange
12

1

of diplomatic letters” between the United States and a foreign

2

government regarding an extradition request is compelling evidence,

3

even in the absence of a declaration, of the “respective State

4

Departments’ views that the . . . Treaty continues to apply between

5

them.”

Id.

Here, the Treaty’s continuing validity is undisputed.

6
7

D.

Extraditable Offense

8
9

The Government must also prove that the offense charged is an

10

extraditable offense covered under the Treaty and that Camelo-

11

Grillo’s actions constituting the offense would be criminal in both

12

the United States and Colombia.

13

is for homicide under Article 8 of Columbia’s criminal code.

14

C at 89).

15

torture, homicide and personal injury committed against any of the

16

persons” listed in Article 6.

17

among

18

Gutierrez-Garcia.

Camelo-Grillo’s 2001 conviction
(Exh.

Article 8 criminalizes “crimes of illegal constraint,

others,

members

of

(Id. at 33).

the

National

Article 6 protects,

Police,

like

Officer

(Id. at 32).

19
20

Article 2, paragraph 1 of the Treaty provides that acts are

21

extraditable if they fall within any of the offenses listed in the

22

Appendix, or, even if they are not listed, if they are punishable

23

under both the federal laws of the United States and the laws of

24

Colombia.

25

extraditable offense.6

(Exh. A at 16).

The Appendix lists murder as an

(Id. at 24).

When considering whether a

26
27
28

Article 2, paragraph 3 of the Treaty further provides that
extradition shall be granted only if the offense is punishable by
imprisonment of one year, and, if the person has already been
6

13

1

fugitive’s acts fall within the extraditable offenses encompassed

2

by a particular treaty, courts must construe the treaty liberally.

3

Manta, 518 F.3d at 1144; see also Cucuzzella v. Keliikoa, 638 F.2d

4

105, 107 n.3 (9th Cir. 1981) (“[T]reaties should be construed to

5

enlarge

6

Laubenheimer,

7

declaration confirms that the offense for which Colombia seeks

8

Camelo-Grillo’s extradition -- murder of a police officer -- is

9

“covered by Article 2 of the Treaty.”

the

rights
290

of

U.S.

the
276,

parties.”)
293-94

(citing

(1933)).

Factor

v.

Heinemann’s

(Heinemann Decl. ¶ 5).

10
11

Under the principle of “dual criminality,” not only must an

12

offense fall under the rubric of extraditable offenses in the

13

applicable treaty, but the acts constituting the offense must also

14

be “criminal in both jurisdictions.”

15

The name by which the crime is described in the two countries need

16

not be the same; nor is it necessary that the scope of liability

17

for the crimes be coextensive.

18

“dual criminality exists if the ‘essential character’ of the acts

19

criminalized by the law of each country are the same and the laws

20

are ‘substantially analogous.’”

21

Oen Yin–Choy v. Robinson, 858 F.2d 1400, 1404 (9th Cir. 1988));

22

see also Matter of Extradition of Russell, 789 F.2d 801, 803 (9th

23

Cir. 1986) (“‘It is enough if the particular variety [of conduct]

24

was criminal in both jurisdictions.’”) (quoting Kelly v. Griffin,

25

241 U.S. 6, 14 (1916)).

26

would be a crime in the United States, the court may look to

Caplan, 649 F.2d at 1343.

Collins, 259 U.S. at 312.

Instead,

Manta, 518 F.3d at 1141 (quoting

In determining whether the fugitive’s acts

27
28

convicted and sentenced, if “at least” six months of the sentence
remain to be served. (Exh. A at 16-17).
14

1

“federal law or, if none, the law of the place where the fugitive

2

is found or, if none, the law of the preponderance of the states.”

3

Cucuzzella, 638 F.2d 1at 107.

4
5

Here, there is no dispute that the crime of which Camelo-

6

Grillo was convicted -- murder -- is covered by the treaty between

7

the United States and Colombia.

8

requirement is easily met because if Camelo-Grillo’s criminal

9

activity had occurred in the United States, it would be subject to

10

prosecution under 18 U.S.C. § 1111, which criminalizes first and

11

second degree murder.

12

for

13

extraditable offense.

which

Colombia

In addition, the dual criminality

Accordingly, the Court finds that the crime
seeks

Camelo-Grillo’s

extradition

is

an

14
15

E.

Probable Cause

16
17

Finally, the Court must determine whether there is “evidence

18

sufficient to sustain the charge,” i.e., “probable cause to believe

19

the person committed the crime charged.”

20

(internal quotation marks and citation omitted).

21

cause standard applied in extradition proceedings . . . has been

22

described as ‘evidence sufficient to cause a person of ordinary

23

prudence and caution to conscientiously entertain a reasonable

24

belief of the accused’s guilt.’”

25

199 (3d Cir. 1997) (quoting United States v. Wiebe, 733 F.2d 549,

26

553 (8th Cir. 1984)); see also In re Extradition of Trinidad, 754

27

F.

28

Extradition of Moglia, 813 F. Supp. 1438, 1442 (D. Haw. 1993)

Supp.

2d

1075,

1081

(N.D.

15

Santos, 830 F.3d at 991
“The probable

Sidali v. I.N.S., 107 F.3d 191,

Cal.

2010)

(same);

Matter

of

1

(same).

Probable cause means a “fair probability” in light of the

2

totality

3

“practicality,

4

conception of probable cause . . . .”

5

440 F.3d 1065, 1069–71 (9th Cir. 2006) (en banc).

6

only determine whether there is competent evidence to justify

7

holding the respondent for trial, not whether the evidence is

8

sufficient to justify conviction.

9

also United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726,

10

730 (9th Cir. 1975) (“The magistrate’s function is to determine

11

whether there is ‘any’ evidence sufficient to establish reasonable

12

or probable cause[.]”).7

of

the

circumstances,

common

sense,

guided

[and]

by

a

fluid

considerations
and

of

nontechnical

United States v. Gourde,
The court need

Collins, 259 U.S. at 316; see

13
14

The

admissibility

of

evidence

in

extradition

matters

is

15

controlled by 18 U.S.C. § 3190, which provides that in extradition

16

hearings,

17

“properly and legally authenticated so as to entitle them to be

18

received for similar purposes by the tribunals of the foreign

19

country from which the accused party shall have escaped . . . .”

20

18 U.S.C. § 3190.

21

admissibility of evidence under general United States extradition

22

law.”

23

Barapind v. Enomoto, 400 F.3d 744, 748 (9th Cir. 2005) (en banc)

24

(per curiam) (“‘With regard to the admissibility of evidence, the

25

general

26
27
28

documents

may

be

received

in

evidence

if

they

are

“[A]uthentication is the only requirement for

Oen Yin-Choy, 858 F.2d at 1406 (citation omitted); see also

United

States

extradition

law

requires

only

that

the

As “part of the magistrate judge’s probable cause analysis,” the
court is “required to determine whether the party before the court
is the party named in the extradition complaint.” Manta, 518 F.3d
at 1143 (internal citation omitted).
7

16

1

evidence submitted be properly authenticated.’”) (quoting Emami v.

2

United States Dist. Court for the N. Dist. of Cal., 834 F.2d 1444,

3

1451

4

evidence, “and the usual rules of evidence are not applicable in

5

this context.”

(9th

Cir.

1987)).

Competent

evidence

includes

hearsay

Then, 92 F.3d at 855 (citations omitted).

6
7

Where, as here, the fugitive has already been convicted, the

8

conviction is often considered dispositive of the existence of

9

probable cause.

As the Fourth Circuit has explained,

10
11

The

principle

that

foreign

convictions

generally

12

constitute probable cause under § 3184 is rooted in

13

comity. . . . “Extradition proceedings are grounded in

14

principles of international comity, which would be ill-

15

served by requiring foreign governments to submit their

16

purposes and procedures to the security of United States

17

courts.”

18

1991).

19

fairness of another sovereign’s justice system . . . are

20

within the purview of the executive branch,” as are

21

questions

22

sincere in its demand for extradition or is merely using

23

the process as a subterfuge.”

24

F.3d

25

concurring).

26

and

competence

of

27

government’s system of justice.”

Id.

28

that foreign convictions “do not constitute probable

Koskotas v. Roche, 931 F.2d 169, 174 (1st Cir.
To this end, “[q]uestions about the procedural

about

588,

608

“whether

(4th

the

Cir.

requesting

the

17

is

[Ordinola v. Hackman, 478
2007)]

(Traxler,

Therefore, we refrain “from

assessing

nation

the

J.,

delving into
requesting

To then conclude

1

cause in the United States would require United States

2

judicial

3

consequently, substitute their judgment for that of

4

foreign judges and juries.

5

inconsistent with principles of comity.”

6

United States, 925 F.2d 615, 618 (2nd Cir. 1991)].

officers

to

review

trial

records

and,

Such an inquiry would be
[Spatola v.

7
8

Haxhiaj v. Hackman, 528 F.3d 282, 290–91 (4th Cir. 2008); see also

9

Skaftouros v. United States, 667 F.3d 144, 156 (2d Cir. 2011)

10

(“[I]t has long been recognized that an extradition judge should

11

avoid making determinations regarding foreign law.”).

12
13

Accordingly, it is well accepted that a “foreign conviction

14

entered after a trial at which the defendant was present suffices,

15

in and of itself, to establish probable cause.”

16

at 290; see also Sidali, 107 F.3d at 199 (same).

17

conviction obtained in absentia that is supported by the foreign

18

court’s written decision setting forth the facts underlying the

19

conviction has been found to “afford[] a reasonable basis upon

20

which to find probable cause.”

21

v. Struga, __ F. Supp. 3d __, 2017 WL 491937, at *6-7 (E.D. Mich.

22

Feb. 7, 2017) (issuing certification of extraditability despite

23

concerns that the accused’s murder conviction was obtained in

24

absentia); Arambasic v. Ashcroft, 403 F. Supp. 2d 951, 962 (D. S.D.

25

2005) (“[T]he fact that [the accused] was convicted in absentia

26

does not alone warrant a denial of extradition.

27

conviction is the result of a trial in absentia, the conviction is

28

regarded

merely

as

a

charge,

Haxhiaj, 528 F.3d
However, even a

Id. at 289; see also United States

requiring
18

However, where a

independent

proof

of

1

probable cause.”) (citing M. Basiouni, International Extradition:

2

United States Law and Practice, Ch. VIII, § 4.8).

3
4

The Court may consider the documents submitted by Colombia in

5

support of its extradition request because the documents have been

6

properly authenticated.

7

ii; Exh. C at i; Reply Exh. A at 4).

8

establishes that there is probable cause to believe that Camelo-

9

Grillo murdered Officer Gutierrez-Garcia.8

(Heinemann Decl. ¶¶ 2-3, 6; Exh. B at iThis evidence overwhelmingly

10
11

There are two relevant outstanding convictions that inform

12

the Court’s probable cause determination:

13

for illegal carriage of weapons, which the Supreme Court affirmed

14

in

15

Gutierrez-Garcia.

16

trial, which resulted in convictions for the murders of Cely-

17

Pinilla and Officer Gutierrez-Garcia, and for illegal carriage of

18

weapons.

19

Colombia’s Supreme Court of Justice, Criminal Cassation Bench,

20

later

21

conviction) to be a nullity for having been obtained in an improper

22

jurisdiction.

23

themselves,

1995,

and

the

(Exh.

declared

2001

conviction

for

the July 1993 conviction

the

murder

of

Officer

Camelo-Grillo was present for his original

C

at

the

62-69).

murder

Accordingly,
directly

However,

convictions

the

establish

1993

as

(but

discussed

not

convictions

probable

cause

the

above,

weapons

cannot,
for

by

Officer

24
25
26
27
28

Colombia’s extradition packet includes documentation establishing
Camelo-Grillo’s identity, including a fingerprint report, (Exh. C
at 27), and information about his height, weight, parents’ names,
department of birth, etc. (Id. at 20).
Camelo-Grillo does not
claim mistaken identity. Accordingly, the Court is satisfied that
the person in custody is the Camelo-Grillo sought by the
extradition request.
8

19

1

Gutierrez-Garcia’s murder, although the Court must accept as proved

2

the facts supporting the illegal carriage of weapons conviction to

3

the extent that they relate to the murder.

4

conviction is, of course, the 2001 in absentia murder conviction.

5

The Court adopts the approach taken by the Fourth Circuit in Haxhiaj

6

and other courts, in which an in absentia conviction, supported by

7

the court’s summary of the evidence presented, may provide probable

8

cause.9

The other relevant

Haxhiaj, 528 F.3d at 289.

9
10

The evidence shows that the chain of events -- from the drive-

11

by shooting of Cely-Pinilla, to the shoot-out at the home where

12

the perpetrators took refuge and killed Officer Gutierrez-Garcia,

13

to Camelo-Grillo’s capture with unlawful weapons in a neighboring

14

residence -- was continuous and swift.

15

respect to the conviction for illegal carriage of weapons, the

16

Supreme Court found that Camelo-Grillo had in his possession a

17

“home made” revolver, five cartridges, and a grenade reserved for

18

use by the Colombian army.

19

least, this is conclusive evidence that Camelo-Grillo was in the

20

area

21

Additional evidence supporting the 2001 murder conviction provides

22

probable cause to believe that Camelo-Grillo was inside the home

23

with

24

eyewitness put Camelo-Grillo in the drive-by shooters’ vehicle,

25
26
27
28

and

his

had

the

means

co-conspirators

(See Exh. C at 93).

(Id. at 42, 88, 91).

to

shoot

when

the

Officer

shoot-out

With

At the very

Gutierrez-Garcia.

occurred.

An

All of the court decisions in this case included detailed,
consistent summaries of the evidence. However, for the sake of
simplicity, the Court’s citations below are to the 1995 Supreme
Court decision that affirmed Camelo-Grillo’s conviction for illegal
carriage of weapons, and to the 2001 decision finding Camelo-Grillo
guilty of the murder of Officer Gutierrez-Garcia.
9

20

1

(id. at 92), and another witness directed police to the home where

2

the shooters had fled. (Id. at 42, 92). When the shooting stopped,

3

Camelo-Grillo was found bleeding, with a fresh gunshot wound to

4

his buttocks, which strongly suggests that he was hit by one of

5

the officers during the shoot-out.

6

also

7

participated in the shoot-out.

8

when Camelo-Grillo was found, his revolver had recently been fired,

9

(id. at 91), which strongly suggests that he actually shot the gun.

probable

cause

to

believe

(Id. at 42, 46, 91).
that

Camelo-Grillo

There is
actively

Forensic evidence established that

10

(Id. at 42, 90).

Furthermore, Camelo-Grillo appeared desperate to

11

avoid capture, as he jumped from the third floor of the home where

12

he was hiding through an open window into a neighboring residence,

13

despite his recent wounds.

(Id. at 42, 88, 91).

14
15

In sum, the evidence supplied by Colombia is competent and

16

establishes that there is probable cause to believe that Camelo-

17

Grillo murdered Officer Gutierrez-Garcia in violation of Article 8

18

of the Colombian criminal code.

19
20

F.

Camelo-Grillo’s Defenses

21
22

Camelo-Grillo raises two primary arguments in his Opposition.

23

First,

he

claims

that

the

Treaty

24

conviction for the offense would constitute double jeopardy, and,

25

alternatively, the dual criminality requirement cannot be met

26

because Camelo-Grillo’s 2001 retrial would be prohibited on double

27

jeopardy grounds in the United States.

28

Camelo-Grillo maintains that Article 14(7) of the International
21

prohibits

extradition

(Opp. at 1-7).

where

Second,

1

Covenant of Civil and Political Rights (“ICCPR”) also prohibits

2

double jeopardy.

(Id. at 7-8).

Both of these arguments fail.

3
4

1.

Double Jeopardy

5
6

Camelo-Grillo contends that the Court may not certify his

7

extradibility because his 2001 conviction was obtained in violation

8

of his rights against double jeopardy.

9

the Treaty bars extradition where the fugitive would be subjected

10

to double jeopardy, and even if the conviction did not violate his

11

rights in Colombia, there can be no dual criminality because his

12

2001 prosecution would have been barred on double jeopardy grounds

13

in the United States.

According to Camelo-Grillo,

14
15

As a threshold matter, even if Camelo-Grillo’s 2001 conviction

16

had

been

obtained

17

jeopardy under Colombian law, the Treaty’s proscription against

18

extradition in cases of double jeopardy would not apply.

19

5(1) of the Treaty specifically provides:

20

be granted when the person sought has been tried and convicted or

21

acquitted

22

extradition is requested.”

23

Requesting State, and the United States is the “Requested State.”

24

The plain terms of the Treaty proscribe extradition only where the

25

fugitive

26

Requested State (i.e., the United States) and would be subject to

27

retrial for the same offense if he were to be extradited to the

28

Requesting State (i.e., Colombia).

by

was

the

tried

in

violation

Requested

and

of

State

his

for

rights

the

convicted

22

double

Article

“Extradition shall not

(Exh. A at 17).

either

against

offense

for

which

Here, Colombia is the

or

acquitted

in

the

1

A requesting party’s retrial of a matter already adjudicated

2

by the requested party would infringe on the comity concerns at

3

the heart of extradition proceedings.

4

not at issue where the prior proceedings were conducted in the

5

requesting party’s jurisdiction.

6

fairness” or “competence” of the foreign sovereign’s justice system

7

are matters for the executive branch, not the courts, to consider

8

in

9

Accordingly, Article 5(1) will not bar extradition.

extradition

proceedings.

However, those concerns are

Questions about the “procedural

Haxhiaj,

528

F.3d

at

290–91.

See In re

10

Extradition of Hurtado, 622 F. Supp. 2d 1354, 1356 (S.D. Fla. 2009)

11

(“Because the treaty between the United States and Peru calls for

12

double

13

convicted or acquitted by the requested state, here the United

14

States, double jeopardy is not a defense to the extradition of

15

Hurtado[,] who was tried and acquitted in the requesting state,

16

Peru.”).

jeopardy

protection

only

if

the

respondent

has

been

17
18

Camelo-Grillo’s dual criminality argument is also misplaced.

19

The

dual

criminality

20

affirmative defenses or procedural rules that would bar prosecution

21

by the requesting or requested party.

22

fugitive’s acts would be criminal in both countries.

23

518 F.3d at 1141 (“[D]ual criminality exists if the ‘essential

24

character’ of the acts criminalized by the law of each country are

25

the same and the laws are ‘substantially analogous.’”) (citation

26

omitted); see also Matter of Extradition of Sidali, 899 F. Supp.

27

1342,

28

punishable regardless of the notion of double jeopardy.

1347

(D.

N.J.

requirement

1995)

does

consider

possible

The question is whether the

(“Clearly,

23

not

the

alleged

See Manta,

acts

are

The only

1

inquiry the Court must make here is whether the alleged crime or

2

act is punishable in each country.”) (emphasis in original).

3

is no serious dispute that murdering a police officer is unlawful

4

in both Colombia and the United States.

There

5
6

Finally,

it

appears

likely

that

the

entire

predicate

to

7

Camelo-Grillo’s arguments -- that the 2001 conviction constituted

8

double jeopardy -- is not well taken.

9

claims that he was “acquitted in 1995” of the murder of Officer

Camelo-Grillo repeatedly

10

Gutierrez-Garcia.

11

Court of Justice, Criminal Cassation Bench, did not acquit Camelo-

12

Grillo when it vacated his murder convictions -- it merely declared

13

them to be a nullity on the procedural ground that they were

14

investigated and tried in the wrong court.

15

court

16

Garcia’s murder to the “Regional Prosecution Offices” for further

17

proceedings.

18

legal

19

incrimination” in Camelo-Grillo’s 2001 conviction, (Reply Exh. A

20

at 13), and that Camelo-Grillo’s due process rights were “respected

21

in the case.”

22

whether Camelo-Grillo’s double jeopardy rights under Colombian law

23

were violated by his 2001 conviction.

24

156 (judges presiding over section 3184 proceedings should “avoid

25

making determinations regarding foreign law”).

26

it were appropriate or necessary to do so, which it is not, it

27

would appear that there was no violation.

specifically

opinion

(See, e.g., Opp. at 4).

referred

(Id. at 50).
letter

the

(Exh. C at 49).
of

Officer

The

Gutierrez-

Furthermore, Judge Blanco-Diagama’s

affirms

(Id. at 14).

matter

However, the Supreme

that

“there

was

no

double

The Court need not and does not reach

28
24

See Skaftouros, 667 F.3d at

However, even if

Accordingly, Camelo-

1

Grillo’s double jeopardy arguments do not persuade the Court that

2

Camelo-Grillo is ineligible for extradition.

3
4

2.

International Covenant Of Civil And Political Rights

5
6

Camelo-Grillo also summarily argues that Article 14(7) of the

7

ICCPR bars his extradition.

(Opp. at 7-8).

8

Grillo, Article 14(7) provides that “[n]o one shall be liable to

9

be tried or punished again for an offense for which he has already

10

been finally convicted or acquitted . . . .”

11

has

12

violated.

13

According to Camelo-

this proceeding.

not

shown

that

his

rights

against

(Id.). Camelo-Grillo
double

jeopardy

were

Even if he had, the ICCPR would offer no protection in

14
15

“[A] relator seeking to block extradition by relying on an

16

international agreement must show, at a minimum, that the agreement

17

upon which he relies establishes a judicially enforceable right.”

18

Patterson v. Wagner, 785 F.3d 1277, 1284 (9th Cir. 2015).

19

Supreme

20

international commitments . . . they are not domestic law unless

21

Congress has either enacted implementing statutes or the treaty

22

itself conveys an intention that it be ‘self-executing’ and is

23

ratified on these terms.’”

24

(2008) (quoting Igartua–De La Rosa v. United States, 417 F.3d 145,

25

150 (1st Cir. 2005) (en banc)); see also Matter of Extradition of

26

Cheung, 968 F. Supp. 791, 803 n.17 (D. Conn. 1997) (“It is only

27

when a treaty is self-executing, when it prescribes rules by which

28

private rights may be determined, that it may be relief for

Court

has

explained,

“while

treaties

“‘may

As the
comprise

Medellin v. Texas, 552 U.S. 491, 505

25

1

enforcement of such rights.”) (internal quotation marks omitted).

2

A “self-executing” treaty “has automatic domestic effect as federal

3

law upon ratification.

4

does not by itself give rise to domestically enforceable federal

5

law.

6

implementing legislation passed by Congress.”

7

at 505 n.2.

Conversely, a ‘non-self-executing’ treaty

Whether such a treaty has domestic effect depends upon
Medellin, 552 U.S.

8
9

It is well settled that the ICCPR does not provide any

10

enforceable right in extradition proceedings because the ICCPR “was

11

ratified ‘on the express understanding that it was not self-

12

executing and so did not itself create obligations enforceable in

13

the federal courts.’”

14

Cir. 2010) (quoting Sosa v. Alvarez–Machain, 542 U.S. 692, 735,

15

(2004) (footnote omitted)); see also Hain v. Gibson, 287 F.3d 1224,

16

1243 (10th Cir. 2002) (“When the Senate ratified the ICCPR, it

17

specifically declared that the provisions thereof were not self-

18

executing”

19

implementing legislation for the ICCPR.”) (internal quotation marks

20

and citation omitted).

21

is not judicially enforceable, and therefore, does not provide

22

. . . a defense to this extradition proceeding.”

23

Supp. 2d at 1357.

24

conviction had violated his rights against double jeopardy, the

25

ICCPR would not bar his extradition.

26

\\

27

\\

28

\\

and,

Serra v. Lappin, 600 F.3d 1191, 1197 (9th

“since

that

time,

Congress

has

never

enacted

“As a non-self-executing treaty, the ICCPR

Hurtado, 622 F.

Accordingly, even if Camelo-Grillo’s 2001

26

1

III.

2

CERTIFICATION AND ORDER

3
4

IT IS HEREBY CERTIFIED TO THE SECRETARY OF STATE that the

5

evidence against Edgar Orlando

6

sustain the charge of murder against him in Colombia under the

7

applicable Treaty and protocol; that Camelo-Grillo is extraditable

8

under

9

proceedings in extradition may be conducted.

the

aforesaid

Treaty

Camelo-Grillo is sufficient to

and

protocol;

and

that

further

10
11

The extradition request and the supporting documents admitted

12

into

evidence

13

authenticated.

14

findings,

15

Secretary of State, pursuant to 18 U.S.C. § 3184.

and

during

the

hearing

Accordingly,
all

documents

the

are

properly

Court

admitted

certified

certifies

into

the

evidence,

and

above
to

the

16
17

THIS COURT HEREBY CERTIFIES that it has found Edgar Orlando

18

Camelo-Grillo extraditable to the Republic of Colombia.

A warrant

19

may be issued, upon the requisition of the proper authorities of

20

the Republic of Colombia, for the surrender of Edgar Orlando

21

Camelo-Grillo according to the Extradition Treaty.

22
23

IT IS FURTHER ORDERED that Edgar Orlando Camelo-Grillo is

24

committed to the custody of the United States Marshal, to be

25

confined without bail until the surrender of Edgar Orlando Camelo-

26

Grillo to the Government of Colombia can be effectuated.

27

§ 3184.

28
27

18 U.S.C.

1

IT IS FURTHER ORDERED that the United States Attorney for the

2

Central District of California shall obtain all testimony and

3

exhibits presented before this Court and shall deliver forthwith

4

the transcripts and evidence to the Clerk of the Court.

5

of the Court shall forward to the Secretary of State a copy of this

6

Certification and Order together with the transcripts of testimony

7

and copies of documents received as evidence.

The Clerk

8
9

IT IS SO ORDERED.

10
11

DATED:

July 10, 2017
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28