OPINION AND CERTIFICATE OF EXTRADITABILITY
JOHN V. ACOSTA, United States Magistrate Judge.
The United States of America, on behalf of the Government of Mexico, seeks the extradition of Paul Garza Mathison, a/k/a Brian Parsons ("Mathison"), under the 1978 Extradition Treaty between the United States of America and the United Mexican States. Mathison is accused of having committed crimes of fraud in Mexico between March and May of 2009, for which a Mexican court, in October 2009, issued a warrant authorizing his arrest. Mathison opposes the United States' extradition request and separately moves to stay this court's ruling on the extradition request to allow him to pursue challenges to the Mexican warrant in a Mexican court.
Mathison is an American citizen wanted in Mexico for allegedly having engaged in conduct constituting fraud under Article 324, section III of the Criminal Code of the State of Michoacan, Mexico. Mathison's alleged fraudulent conduct occurred during March, April, and May 2009. During this time period Mathison allegedly posed as the owner of a company called "Promotora Turistica de Uruapan" and induced Jose Jesus Begar Ortiz ("Ortiz"), a Mexican citizen, to loan Mathison money against five checks drawn against that company's bank accounts; one of the accounts did not actually exist and the others lacked sufficient funds to cover the checks Mathison wrote. By this scheme Mathison obtained from Ortiz 2,810,000 Mexican pesos, the equivalent of $235,374, as well as a BMW automobile. On October 9, 2009, after completion of a criminal investigation by the Investigative Public Prosecutor in the Judicial District of Urapan, State of Michoacan, Mexican United States, the Second Criminal Trial Court for the Judicial District of Urapan issued a warrant issued for Mathison's arrest.
On September 14, 2012, the Government filed a complaint against Mathison in which it detailed the Mexican government's request for Mathison's extradition pursuant to the Extradition Treaty between the United States of America and the United Mexican States of May 4, 1978 (TIAS 9656) ("Treaty"), and seeking a warrant for Mathison's arrest. At the time, Mathison was in custody at Columbia River Correctional Institution, Oregon, serving consecutive 13-month sentences for felony car theft and identity theft. In the complaint the Government asked the court to certify to the Secretary of State that the Mexican government's evidence is sufficient under the Treaty to sustain the charges against Mathison and support his extradition. The arrest warrant issued and the Government arrested Mathison on October 1, 2012.
On December 12, 2012, the Government filed its memorandum (Dkt. No. 9) in support of its extradition request,
The Government's Evidence
The Government submitted the following evidence in support of its extradition request:
Mathison submitted the following evidence in opposition to the Government's extradition request and in support of his motion to defer ruling on the extradition request:
Mathison's Amparo Proceeding
Mathison's Mexican counsel filed his amparo proceeding on July 15, 2013. "Amparo" means "protection" in the
By his amparo action Mathison challenges the validity of the Mexican warrant on these grounds:
Opposition to Request for Extradition ("Opp. Memo.") at 7; May 30, 2013, Letter of Kristen Tranetzki with preliminary Legal Opinion of Francisco Javier Paz Rodriguez, Mexican attorney for Paul Garza Mathison, pp. 1-2.
I. Request for Extradition
Extradition from the United States is a diplomatic process initiated by a request from a foreign nation directly to the State Department seeking extradition of an individual. Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir.2005). The process is governed by 18 U.S.C. § 3184, which provides in relevant part:
Thus, the State Department determines whether the requesting nation's request is within the scope of a treaty between the requesting nation and the United States and, if so, then a United States Attorney files a complaint in federal district court to obtain an arrest warrant for the fugitive. Manta v. Chertoff, 518 F.3d 1134, 1140 (9th Cir.2008). Upon such a complaint, a district judge or magistrate judge convenes an extradition hearing to determine whether:
Id. See also In re Extradition of McCabe, Case No. 10-XR-90622 NJV, 2011 WL 723561, at *10 (N.D.Cal. Feb. 22, 2011) (listing the five elements and characterizing the fifth element as "there is probable cause to believe that the fugitive committed the crimes"), citing Zanazanian v. United States, 729 F.2d 624, 625-26 (9th Cir.1984). If the court concludes that each of the above elements are met, it has no discretion and must certify the extradition to the Secretary of State. 18 U.S.C. § 3184; Manta, 518 F.3d at 1140. The Secretary of State "then determines in her discretion whether the individual will be surrendered." Prasoprat, 421 F.3d at 1012.
The admissibility of evidence in an extradition proceeding is governed by "`the general extradition law of the United States and the provisions of the Extradition Treaty.'" In re Extradition of Santos, 795 F.Supp.2d 966, 970 (C.D.Cal.2011), quoting Emami v. U.S. District Court, 834 F.2d 1444, 1450 (9th Cir.1987). The Government's evidence must be "properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof of the same[.]" 18 U.S.C. § 3190. Neither the Federal Rules of Criminal Procedure nor the Federal Rules of Evidence apply in extradition hearings. Fed.R.Crim.P. 1(a)(5)(A); Fed.R.Evid. 1101(d)(3)(but preserving the rules of privilege); In re Santos, 795 F.Supp.2d at 970, citing Then v. Melendez, 92 F.3d 851, 855
"`Extradition treaties are to be liberally construed so as to effect their purpose, that is, to surrender fugitives for trial for their alleged offenses.'" In re Santos, 795 F.Supp.2d at 970, quoting Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 14, 57 S.Ct. 100, 81 L.Ed. 5 (1936). "These treaties should be faithfully observed, and interpreted with a view to fulfill our just obligations to other powers, without sacrificing the legal or constitutional rights of the accused." In re Extradition of Basic, Case No. 5:11-MJ-5002-REW, 2012 WL 3067466, at *18 (E.D.Ky. July 27, 2012), quoting Grin v. Shine, 187 U.S. 181, 184, 23 S.Ct. 98, 47 L.Ed. 130 (1902). Thus, an extradition treaty "should be construed more liberally than a criminal statute or the technical requirements of criminal procedure." Factor v. Laubenheimer, 290 U.S. 276, 298, 54 S.Ct. 191, 78 L.Ed. 315 (1933).
II. Motion for Stay
The test to obtain a stay requires the court to consider four factors:
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Accord Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir.2011). A stay is an exercise of judicial discretion and the party requesting the stay bears the burden of showing that the circumstances of the particular case justify the court exercising its discretion. Nken, 556 U.S. at 433-34, 129 S.Ct. 1749.
The first two factors of the test "are the most critical," Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009), but a stay cannot issue unless the moving party meets its burden on the second factor, irreparable harm. Leiva-Perez, 640 F.3d at 965 (characterizing irreparable harm as "the bedrock requirement" to obtaining a stay). This is true "regardless of [the moving party's] proof regarding the other stay factors." Id. The moving party's evidence must prove that irreparable harm "is probable if the stay is not granted." Id. at 968. A showing of a "`possibility of irreparable injury' fails to satisfy the second factor," Nken, 556 U.S. at 434-35, 129 S.Ct. 1749, quoting Abbassi v. INS, 143 F.3d 513, 514 (9th Cir.1998). Further, the moving party must show that the irreparable harm is "specific to his or her case, as opposed to a reason that would apply equally well to all [others] in all cases." Leiva-Perez, 640 F.3d at 969.
I. Motion for Stay
Mathison opposes the Government's extradition request and also counters it with his own motion asking the court to refrain from ruling on that request
Mathison offers two reasons he will suffer irreparable harm if the court denies his stay motion, but each reason fails to support his irreparable harm argument. Mathison's first reason comprises two fact-based contentions. First he contends that if extradited to Mexico he will be subject to the physical abuse or torture reportedly commonplace in the Mexican prison system. Second he asserts that his life will be in danger if he is sent to Mexico because he has received threats from persons in Mexico, such threats presumably a result of Mathison's allegedly fraudulent actions.
Each of Mathison's two fact-based contentions fails, although for different reasons. His first fact-based reason, physical abuse or torture by Mexican authorities, fails to demonstrate individualized harm. Mathison must provide "a reason specific to his or her case, as opposed to a reason that would apply equally well to all [others] and all cases[,]" that he is likely to suffer harm. Leiva-Perez, 640 F.3d at 969. However, Mathison fails to link the reported abuse in the Mexican prison system to his particular situation; instead, his apprehensions about the Mexican prison system are generalized and are not specific to him or to his case. Thus, this factual contention does not satisfy the Ninth's Circuit's threshold requirement for demonstrating irreparable harm,
Mathison's second factual contention, that he has received threats, also fails to meet the irreparable harm standard, Mathison asserts extradition to Mexico will endanger his life because the Mexican criminal charges are based on financial transactions involving drug cartel members and their money-laundering operations. At the July 16, 2013, hearing Mathison's counsel proffered that Mathison had received two threats, one approximately eight months earlier that "people were hunting for him" in Mexico, and the second approximately five months earlier that he should not return to Mexico because there is a "100,000 peso price on his head," After the hearing Mathison filed a letter from Brenda Ortiz-Ruiz, declarations from Maria Vasquez and George Ibarra Martinez, and his own declaration, all of which claim that Mathison's life will be in danger if he is returned to Mexico.
Mathison's evidence of threats does not satisfy his irreparable harm burden, First, the evidence proffered at hearing and contained in the subsequently filed letters and declarations is not of threats but of warnings. Others telling Mathison that "people
Second, Mathison has submitted no evidence that links his allegedly fraudulent transactions with drug cartels or money laundering, None of his witnesses assert that Ortiz, the victim of Mathison's alleged fraud, or any of the persons who gave statements or evidence in support of the Mexican charges are involved in the drug trade or money laundering. Mathison's declaration contains a single sentence to this effect but that sentence is general and conclusory. Moreover, Mathison gives no explanation for why these persons with whom he previously dealt without incident now want to do him harm.
Third, the reliability and accuracy of the statement and declarations are questionable. Mathison's declaration and the statements from Vasquez and Martinez are based on information each obtained from unidentified persons, ultimately making impossible any objective and accurate assessment of each witness's personal knowledge and credibility, and thus the validity and seriousness of the threats. The letter from Ortiz-Ruiz also is based on information from a third party (her brother) but contains only general assertions of drug cartel violence and official corruption. None of Mathison's three witnesses claims to have heard any person make a threat against Mathison, and Mathison himself does not claim to have received a threat from anyone who states an intent to harm him.
Fourth, all of Mathison's evidence on this point is provided by him or by persons he identified as witnesses, and Mathison's credibility is suspect. First, he has a record of convictions for crimes involving dishonesty
The nature and content of the evidence supporting the Leiva-Perez court's finding of irreparable harm underscores the inadequacy of Mathison's evidence here. First, Leiva-Perez, who sought political asylum in the United States, testified personally. Second, the district court found him credible. Third, his testimony described specific acts and identified specific groups:
640 F.3d at 970. Mathison's evidence contains none of the indicators of credibility or
Mathison's second argument is that he will suffer legal irreparable harm if a stay is not granted. He contends that denying the stay will irreparably harm him because he then will be extradited to Mexico, and under Mexican law once he is extradited to and arrested in Mexico, his "judicial status" changes. Specifically, his arrest in Mexico would cancel the warrant and it would cease to exist, and the amaparo action then also would cease to exist. Consequently, Mathison argues, he would be denied the right and opportunity to challenge the warrant under Mexican law, To support his position, Mathison cites a district court opinion from In re Extradition of Daniel Wepplo, Case No. 09-MC-53, 2010 WL 1433407 (N.D.Ohio April 7, 2010), where the court found this possible outcome sufficient to constitute irreparable harm and thus justify a delay of the court's ruling on the government's extradition request.
Mathison's use of Wepplo to support his legal irreparable harm argument is misplaced for reasons that also support a finding that this argument fails to meet his irreparable harm burden. The Wepplo court's stay decision turned on Wepplo's strong showing that the Mexican warrant's probable cause was based on fabricated testimony.
Mathison's amparo proceeding does not challenge the probable cause underlying the Mexican warrant in his case. Instead, it identifies a variety of procedural and technical deficiencies in the warrant. Mathison observes that:
Opp. Memo, at 7; May 30, 2013, Letter of Kristen Tranetzki with preliminary Legal Opinion of Francisco Javier Paz Rodriguez, Mexican attorney for Paul Garza Mathison, pp. 1-2.
None of the deficiencies Mathison raises challenges the substance of the witness statements and documents that provide the probable cause for the charges against him. In his amparo proceeding Wepplo claimed the witness testimony that provided the probable cause to issue the warrant had been fabricated. Mathison asserts in his amparo proceeding no similar attack against the testimony of the lay witnesses, the accounting expert, or the attorneys; or against the bank records, the real property bill of sale, or the automobile bill of sale. In short, Mathison's amparo proceeding challenges the Mexican warrant's compliance with technical or procedural requirements of Mexican law but leaves intact the content of the witness testimony that identifies him and describes his conduct, as well as the content of the documentary evidence that memorializes the transactions, that serve as the basis of the Mexican fraud charges. Thus, if Mathison's amparo proceeding is successful it would not, unlike Wepplo's amparo proceeding, affect the court's ability to fulfill its role in determining whether probable cause exists to believe Mathison has committed the crime charged. Because the court's probable cause determination is not affected by the outcome of Mathison's amparo proceeding, there is no reason to stay the court's ruling on the government's extradition request. See Skaftouros v. United States, 667 F.3d 144, 156 (2nd Cir.2011) ("Technical objections to the demanding nation's compliance with its own law are particularly disfavored [in the extradition context]").
The court addressed the effect of a similar procedural challenge on an extradition request in In re Extradition of Basic, 2012 WL 3067466 (E.D.Ky. July 27, 2012). There, Basic argued the extradition request did not comply with the treaty governing extradition requests between the United States and Bosnia & Herzegovina ("BiH") because no warrant document had been submitted. The court first observed that "no document in the BiH packet bears the formal title `warrant of arrest.'" Id. at *17. The court then acknowledged that under the BiH treaty "the Secretary of State cannot extradite citizen Basic unless BiH produces a duly-authenticated warrant copy." Id. at *18.
The court found that BiH's papers nonetheless satisfied the treaty's warrant requirement. Id. The court reiterated long-standing Supreme Court precedent that "comity-based deference and liberal construction rules [are] required" in the extradition context. Id., citing Grin v. Shine, 187 U.S. at 185, 23 S.Ct. 98 ("[W]here the
In re Basic, 2012 WL 3067466, at *18 (citations omitted; emphasis in original).
The Mexican government's papers indisputably establish that Mathison is currently charged with conduct which, if true, violated Mexican criminal fraud laws. His amparo proceeding alleges procedural infirmities in the Mexican warrant which, even if proved, would not alter that Mathison is accused by competent evidence of having engaged in conduct that defrauded a Mexican citizen of substantial amounts of money, which conduct constitutes prosecutable crimes that fall within the extradition treaty between the United States and Mexico. Furthermore, Mathison's amparo proceeding does not dispute what the Mexican witnesses and documents show: that he was involved in the transactions described and memorialized, that he is the subject of the fraud charges, and that he is the person identified in the Mexican government's extradition request.
Mathison frames the procedural infirmities as irreparable harm by arguing, as he did at the July 16, 2013, hearing, that he will lose his right under the Mexican Constitution to raise these challenges if he is extradited and the Mexican warrant is then executed. See also Extradition Opp. Mem. at 5-8. Mathison's argument does not affect the court's irreparable harm analysis because the question he raises, whether he surrenders his right to raise these challenges if extradited, is solely a question of Mexican constitutional law. Such questions are the very kind of foreign law determinations that extradition judges are to avoid. This is especially true of Mathison's attack on the warrant's validity on the ground that he did not have the opportunity afforded under Mexican law to defend himself against the fraud charges before the warrant issued. An American extradition court is neither equipped nor empowered to interpret and apply the Mexican Constitution or to determine what rights it bestows upon individuals charged with violating Mexican criminal laws. See Skaftouros, 667 F.3d at 156 (noting that it is error for United States courts to review whether "the demanding country has complied with its own law" except as necessary to "ensure compliance with the applicable extradition treaty"); In re Basic, 2012 WL 3067466, at *19 ("This Court is ill-equipped to parse Bosnian or Republika Srpska practice for the fine technical points on the topic of warrant issuance.").
Mathison's only challenge to the substance of the evidence itself at most creates only a credibility issue that also must be resolved by the Mexican courts. Mathison
In summary, the difference between Mathison's amparo proceeding and Wepplo's amparo proceeding is critical because Mathison's amparo proceeding, unlike Wepplo's amparo proceeding, does not call into question the probable cause offered in support of the Mexican warrant, the presence of which is a prerequisite to this court's certification decision under the statute. Mathison's amparo challenges instead questions whether the Mexican authorities have complied with that country's law, which is a question requiring the determination of foreign law in which extradition judges must not engage. Accordingly, Mathison's legal argument does not demonstrate irreparable harm and his Motion (Dkt. No. 29) to Refrain from Ruling is DENIED.
II. Request for Extradition
Having concluded that a stay of the Government's extradition request is not warranted, the court examines whether the Government's extradition request meets the certification requirements established under the governing statutory and case law authority.
A. Court's Jurisdiction to Conduct Extradition Proceeding.
This court possesses subject matter jurisdiction to conduct extradition proceedings pursuant to 18 U.S.C. § 3184. Mathison agreed that this court has jurisdiction to conduct this extradition proceeding.
B. Jurisdiction Over Mathison.
This court possesses personal jurisdiction over Mathison, who at all times material was present and in state custody in the District of Oregon, In addition, Mathison agreed at the July 16, 2013, hearing that the court has personal jurisdiction over him for purposes of the Government's extradition request.
C. Valid Extradition Treaty.
A valid extradition treaty between the United States and Mexico exists and is, and has been at all material times, in full force and effect. See Extradition Treaty between United States and Mexico, Martin Decl., Ex. 1; Dkt. No. 9-1; Page ID #50-71. In addition, Mathison agreed at the July 16, 2013, hearing that an valid extradition treaty between the two countries is in effect.
D. The Mexican Criminal Charge Is Within the Scope of the Treaty.
First, the Mexican government has charged Mathison with an extraditable crime under the Treaty, Mathison is charged with fraud, as described in Article 324(III) of the Penal Code of the State of Michoacan. See Articles of the Michoacán Criminal Code, Sanchez Aff., Ex. 1; Dkt. No. 10; Page ID #92-96. Under the
Second, the fraud charged here is meets the "dual criminality" requirement for extradition because the essential character of the Mexican fraud also is criminalized conduct in the United States. "Under the principle of dual criminality, no offense is extraditable unless it describes conduct which is criminal in both jurisdictions." Emami v. U.S. Dist. Court for N.D. Cal., 834 F.2d 1444, 1449 (9th Cir.1987). See also In re Extradition of McCabe, No. 10-XR-90622 NJV, 2011 WL 723561, at *10 (N.D.Cal. Feb. 22, 2011) ("Dual criminality exists when the offense charged in the country seeking extradition `is generally recognized as criminal in both countries.'") (quoting Factor v. Laubenheimer, 290 U.S. 276, 300, 54 S.Ct. 191, 78 L.Ed.2d 315 (1933)). The name and elements of the crime in the two countries need not be the same, nor must the scope of criminal liability be coextensive. Emami, 834 F.2d at 1444 (citations omitted). "Rather, dual criminality exists if the essential character of the acts criminalized by the law of each country are the same." Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1404 (9th Cir. 1988) (internal quotations and citations omitted). The foreign offense may be one constituting a crime under federal law or under the law of the state in which the extradition hearing is held. Cucuzzella v. Keliikoa, 638 F.2d 105, 107-08 (9th Cir. 1981).
Mathison is charged with fraud, defined under the Michoacan Criminal Code to have occurred when "[w]hoever by means of deceit or taking advantage of a mistaken belief held by another person, illegally obtains, for themselves or a third party, an object or an unlawful profit commits the crime of fraud." See Articles of the Michoacan Criminal Code, Sanchez Aff., Ex. 1; Dkt. No. 10; Page ID #93, The Michoacan Criminal Code also imposes a term of imprisonment of between three and twelve years for fraud. Id. The essential character of this crime is using deceit toward or creating a mistaken belief in another person for the purpose of obtaining from that person an object or profit. To support dual criminality the Government cites 18 U.S.C. § 1343, entitled "Fraud by wire, radio, or television," and which provides in relevant part:
Mathison observes that the Mexican fraud statute contains no requirement that the accused person have engaged in the proscribed conduct using electronic means and that he is not alleged in the Mexican warrant to have used such means. This argument is premised on a comparison of each statute's elements rather than essential character of the conduct each proscribes. The gravamen of the Mexican charge is employing deceit or false impression to take from another person money or
Accordingly, the crime charged falls within the scope of the Treaty and meets the dual criminality requirement.
E. Probable Cause.
"Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). Probable cause means a "fair probability," not certainty or even a preponderance of the evidence. United States v. Gourde, 440 F.3d 1065, 1069-71 (9th Cir.2006) (en banc). "`The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.'" Rodis v. City, County of San Francisco, 558 F.3d 964, 969 (9th Cir.2009), quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). In making a probable cause determination the district court does not weigh conflicting evidence or make factual determinations, but instead decides only whether there is competent evidence to support probable cause for the charged offense. In re McCabe, 2011 WL 723561, at *14. "Generally, evidence that explains away or completely obliterates probable cause is the only evidence admissible at an extradition hearing, whereas evidence that merely controverts the existence of probable cause, or raises a defense, is not admissible." Mainero v. Gregg, 164 F.3d 1199, 1207 n. 7 (9th Cir. 1999), superseded by statute on other grounds, Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir.2000), citing Charlton v. Kelly, 229 U.S. 447, 457-58, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Barapind v. Enomoto,
The Government's evidence satisfies the probable cause standard because it supports the conclusion of a fair probability Mathison engaged in the alleged conduct which constitutes the crime of fraud under the Michoacan Criminal Code. Accompanying the Mexican warrant are witness statements, bank records, a bill of sale for an automobile, a contract for the sale of real property, an expert accountant's report, and a photo array, all of which corroborate the allegations contained in the Mexican warrant. The witness statements each are given under oath and provide detailed descriptions of some part of the conduct which collectively give rise to the fraud charge. (Sanchez Aff., Ex. 4; Dkt. No. 10, Page ID #118-122; Ex. 8; Dkt. No. 11, Page ID #136-137; Ex. 9; Dkt. No. 11, Page ID #138-142; Ex. 10; Dkt. No. 11, Page ID #143-147; Ex. 11; Dkt. No. 12, Page ID #148-154; Ex. 12; Dkt. No. 12, Page ID #155-157; and Ex 13; Dkt. No. 12, Page ID #158-160.) Four of the five statements are based on the witnesses' personal knowledge of one or more of the transactions described in the warrant, including the physical transfer of cash from Ortiz to Mathison. The remaining statement, Ortiz's, was given through his legal representative on his behalf but provides similar detail about the underlying events. The statements uniformly identify Mathison as the person involved in the transactions in which Mathison represented his solvency to Ortiz and promise to repay the amounts Ortiz loaned to him, which resulted in Ortiz giving to Mathison the amounts of money and the automobile which are the subject of the fraud charge. The circumstances described in the witness statements also support the inference that Mathison intentionally made statements either to deceive Ortiz or to create in him mistaken beliefs, for the purpose of causing Ortiz to give Mathison both money and the automobile.
The witness testimony is supported by the documentary evidence that accompanies the warrant. The bank records are certified. (Sanchez Aff. Ex. 7, Dkt. No. 11, Page ID #131-135, and Ex. 16, Dkt. No. 12, Page ID #170-181.) There are copies of the checks Mathison issued to Ortiz and attestations from various banks that the accounts or funds against which the checks were drawn did not exist, (Id.) A purchase and sale agreement for real property, although not consummated, corroborates that Mathison was engaging in financial transactions with Ortiz consistent with the other conduct alleged in the warrant. (Sanchez Aff., Dkt. No. 10, Page ID #81, 85, and Ex. 5; Dkt. No. 11, Page ID #123-127.) The parties signed the contract before a notary and one of the witnesses. (Id.) Ortiz and a witness were shown a six-person photo array that contained one photo of Mathison, and both witnesses identified Mathison as the person involved in the transactions with Ortiz. (Sanchez Aff. Ex. 17, Dkt. No. 12, Page ID #182-188.) The expert accountant's report confirms the total amount which Mathison by his alleged fraud obtained from Ortiz. (Sanchez Aff., Ex. 15; Dkt. No. 12, Page ID #165-169.) Mathison in fact received delivery of Ortiz's BMW automobile pursuant to the bill of sale that also accompanies the warrant. (Sanchez Aff., Dkt. No. 10, Page ID #84-85, and Ex 6; Dkt. No. 11, Page ID #128-130.)
The Treaty provides that the documents required to be submitted in support of the Mexican government's extradition request "shall be received in evidence" when those documents "are certified by the principle [sic] diplomatic or consular officer of the United States of America." Treaty, Article 10(6)(b). See also 18 U.S.C. 3190 (requiring admission of evidence in an extradition proceeding that is "properly and legally authenticated"). There is no dispute here that the United States' principal diplomatic officer in Mexico, Ambassador Earl Anthony Wayne, certified the evidence submitted by the Government in support of the extradition request. The Government presented the appropriate diplomatic certification (see Wayne Cert., Dkt. No. 10; Page ID #72), and Mathison agreed at the July 16, 2013, hearing that the Government's evidence met the certification requirement.
C. Mathison's Defenses
Generally, the Secretary of State, and not the district court, makes the determination whether extradition should be denied because of fears the fugitive will be tortured or not treated humanely. Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9th Cir.1997). Mathison stated at hearing that he is not asserting a political crime defense to the Mexican warrant, see Matter of Extradition of McMullen, 989 F.2d 603, 613 (2nd Cir.1993) ("Whether or not to include a `political offense' exception in an extradition treaty is a policy judgment, which rests exclusively in the discretion of the Executive Branch and the Senate."), and he preserved his "humanitarian exception" argument to raise on petition for habeas corpus or with the Secretary of State should that be necessary. See In re Extradition of Santos, 795 F.Supp.2d 966, 991-92 (C.D.Cal.2011) (discussing the rule of non-inquiry and the Ninth Circuit's rejection of a humanitarian exception to extradition); and Prasoprat v. Benov, 421 F.3d 1009, 1017 (9th Cir.2005) (holding that an extradition magistrate does not have the authority to refuse to issue certificate of extradition on humanitarian grounds).
Certificate of Extraditability
JOHN V. ACOSTA, United States Magistrate Judge.
Having heard and considered the evidence and arguments in this matter, in accordance with 18 U.S.C. § 3184 et seq., and based on the findings and conclusions set forth above, the court certifies to the Secretary of State of the United States of America that:
Accordingly, Paul Garza Mathison, a/k/a Brian Jake Parsons, is extraditable to Mexico for the offense of criminal fraud described in the Government's extradition request.