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)

Download PDF
1 2 3 4 5 6 7 8 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.). 19 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?