MEMORANDUM AND ORDER DECLINING TO CERTIFY EXTRADITION
EDMUND F. BRENNAN, Magistrate Judge.
The Republic of Iraq has charged Mr. Omar Abdulsatar Ameen ("Ameen") with premeditated murder and seeks his extradition. ECF No. 137-1 at 20-21. A judge in the Baghdad Federal Al-Karkh Appellate Court issued a warrant for Ameen's arrest in connection with a murder that occurred on June 22, 2014 in Rawah, Iraq. Id. at 21. After more than two years of proceedings and two extradition hearings, this court finds, for the reasons stated hereafter, that the Government has failed to satisfy its burden under 18 U.S.C. §§ 3184, et seq. Thus, it declines to certify Ameen's extraditability.
Admission of Evidence
Prior to discussing the background and arguments of the parties, the court finds it necessary to set the contours of the case by ruling on the admissibility of all exhibits offered by the defense.
The Federal Rules of Evidence do not apply in extradition hearings. See Then v. Melendez, 92 F.3d 851, 855 (9th Cir. 1996). Whether to admit evidence in an extradition proceeding lies within the court's discretion. In re Extradition of Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986). Under general United States extradition law, authentication is the only prerequisite for admissibility of evidence. Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1406 (9th Cir. 1988). The court should look to the relevant extradition treaty to determine if any special provisions on the admissibility of evidence apply. See Emami v. U.S. Dist. Ct., 834 F.2d 1444, 1450 (9th Cir. 1987) (admissibility of evidence governed by "the general extradition law of the United States and the provisions of the [Extradition] Treaty . . . ."). Here, the treaty provides only that:
If, however, the fugitive criminal is merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed, and copies of the depositions upon which such warrant may have been issued, shall be produced with such other evidence or proof as may be deemed competent in the case.
ECF No. 137-1 at 10 (Treaty Between the United States of America and Iraq, Article XI). For his part, the fugitive may introduce only evidence that "tends to explain the government's case of probable cause." Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir. 1978). Put another way, the fugitive may introduce explanatory evidence, but not contradictory evidence. The distinction between the two types of evidence is often hazy. The U.S. Court of Appeals for the Ninth Circuit has drawn the following distinction:
[W]e have generally settled on the principle that `explanatory' evidence is evidence that `explains away or completely obliterates probable cause,' whereas contradictory evidence is that which `merely controverts the existence of probable cause, or raises a defense.'
Santos v. Thomas, 830 F.3d 987, 992-93 (9th Cir. 2016). As discussed in detail below, however, several courts have held that evidence of an alibi defense is admissible if it negates or obliterates probable cause. See infra at 16.
The most recent list provided by the defense accounts for one-hundred and eighty-four exhibits. ECF No. 296. The court has, as the list notes, previously ruled on the admissibility of seventy-six of these exhibits. Of those seventy-six, all have been admitted save those listed in the following table:
Exhibit Number Description Admission Status
Declaration of Withdrawn by
3 Abdelsalem Defense
18 Declaration of Linda
Humble re: Musab Excluded
Declaration of Linda
19 Humble re: Neder Excluded
Supplemental Excluded in part.
19.1 Declaration of Omar Admitted the portions
Hamid of the affidavit
attesting to Ameen's
presence in Turkey in
2014. Excluded the
portions of the
affidavit attesting to
Ameen's tolerance of
other religions and the
length of his hair.
Declaration of Linda
19.2 Humble re: Uday Excluded
Certification of No
28 Criminal History in Excluded
Declaration of Excluded in part.
29 Radhya Hamed Admitted the portions
of the affidavit
attesting to Ameen's
presence in Turkey in
2014. Excluded the
portions of the
affidavit stating that
Ameen and family
were "nice people."
U.S. Tax Documents
31 College Transcript Excluded
32 Congressperson Ami Excluded
Declaration of Rifaat
33 Ammar Excluded
Declaration of Tala
33.1 Najem Excluded
Declaration of Linda
37 Humble re: Excluded
Interview of Witness
October 23, 2017, Excluded in part.
38 FBI Statement by Admitted for the
Person 5 purpose of
Person 5's statement
in the extradition
request is forged or
exhibit's admission is
discussed in greater
Declaration of Excluded in part. See
39 Quetaiba Al-Rawi description of Exhibit
Photographs of Omar Excluded in part. See
41.1 Ameen description of Exhibit
September 21, 2017, Excluded in part. See
42 Person 5's Purported description of Exhibit
May 24, 2018, FBI Excluded in part. See
44 302 Re: Person 5's description of Exhibit
October 23, 2017 38.
Declaration of Belkis Excluded in part. See
45 Wille description of Exhibit
Supplemental Excluded in part. See
46 Declaration of description of Exhibit
Natiq Abduljaleel 38.
October 23, 2017, Excluded in part. See
47 FBI 302 description of Exhibit
on Person 7 38.
Declaration of Omar Excluded at May 28,
58 Salih Rasheed 2019 hearing. ECF
(with Certified No. 171 at 93-95
Declaration of Zayed Excluded at May 28,
62 Tarek Sadallah 2019 hearing. ECF
(with Certified No. 171 at 94-95.
With respect to the exhibits that have not yet been ruled on, the court finds:
• Exhibit 49 contains internet protocol information that was returned from Facebook. ECF No. 217-1. The information appears to bear on Ameen's claim that he was in Turkey at the time of the murder. This exhibit is admitted.
• Exhibit 78 contains signature samples from Judge Jafaar from the extradition packet. ECF No. 208-2. The court previously admitted exhibits which bore on the question of whether signatures in the extradition packet were forged. This exhibit is admitted on that basis.
• Exhibit 79 contains a declaration from Iraqi lawyer Layth Madab. ECF No. 208-3. It describes his interactions with Witnesses A and B. It also describes Witnesses A and B's attempt to withdraw their accusations against Ameen. As discussed below in the analysis section, the parties dispute whether Witnesses A and B sought to withdraw their accusations because they genuinely believe Ameen to be innocent or because they are being coerced. The court finds it unnecessary and inappropriate to resolve this factual dispute. Exhibit 79 is excluded for want of relevance.
• Exhibit 80 is a sealed copy of the collated and numbered Arabic/English extradition packet. ECF No. 208-4. This exhibit is admitted.
• Exhibit 81 contains United Nations High Commissioner for Refugees ("UNHCR") documents relevant to Ameen's refugee status in Turkey. ECF No. 208-5. The court has admitted similar documents. These are admitted as well. For the same reason, Exhibit 105 is also admitted.
• Exhibit 82 is a declaration from defense counsel Rachelle Barbour which describes the process and results of the defense's subpoena of Facebook. ECF No. 208-6. This exhibit is admitted.
• Exhibit 83 is a declaration from defense counsel Rachelle Barbour that summarizes FBI documents that the government permitted her to view. ECF No. 208-7. It bears on Exhibit 38 which was admitted in part. This exhibit is admitted.
• Exhibit 84 is a declaration from Samar Qasim, the victim's widow. ECF No. 208-8. It describes the day the victim was murdered and contradicts the account offered by Person 5. This exhibit is excluded as contradictory evidence. See ECF No. 160 at 17.
• Exhibit 85 is a declaration from Zayed Tarek Sadallah. ECF No. 208-9. Sadallah claims that Ameen was not in Rawah in 2014. This exhibit bears on Ameen's alibi that he was in Turkey at the time of the murder and is admitted.1
• Exhibit 86 is a letter from the Defense Intelligence Agency ("DIA") that responds to Privacy Act and Freedom of Information Act requests made by Ameen. ECF No. 208-10. It states that no responsive documents were found and appears to confirm that the DIA has never identified Ameen as a known terrorist or Islamic State in Iraq and Syria ("ISIS") asset. The court has previously excluded evidence that did not bear on the specific question of whether Ameen committed the murder at issue in these proceedings. This exhibit is excluded on that basis.
• Exhibit 87 is a sealed exhibit that is viewable in person at the Clerk's Office. ECF No. 208-11. It contains verified signatures from Person 5.2 The court has previously admitted exhibits which bear on the veracity of the signatures in the extradition packet. This exhibit is admitted as well.
• Exhibit 88 contains verified signatures from Witness A. ECF No. 208-12. This exhibit is admitted for the same reasons described above in the discussion of Exhibit 87.
• Exhibit 89 is a declaration from defense investigator Gamal Abdel-Hafiz. ECF No. 208-13. It relates to Witness A and B's desire to withdraw their accusations against Ameen. Witnesses A and B also related an account of the murder to Abdel-Hafiz that contradicts Person 5's account and their own previous statements in the extradition packet. This exhibit is excluded for the reasons stated in the discussion of Exhibit 79 and as contradictory evidence.
• Exhibit 90 is a redacted transcript of an interview between defense investigator Abdel-Hafiz and Person 5. ECF No. 208-14. The transcript is offered to contradict Person 5's account of the murder in the extradition packet and to call his credibility into question. The court previously ruled that evidence attacking witness credibility is not admissible. ECF No. 160 at 17-18; see also Santos v. Thomas, 830 F.3d at 993 (holding that the accused "may not impeach government witnesses or produce witnesses whose testimony contradicts evidence already offered by the government."). This exhibit is excluded on that basis. For the same reasons, Exhibits 93, 94, 96, 97, 98, 99, 103, and 115 are excluded. ECF Nos. 208-17, 208-18, 217-2, 217-3, 217-4, 208-20, 208-24, 208-36.
• Exhibit 91 is an identification card for Person 5. ECF No. 208-15. This exhibit is admitted to the extent it is relevant to the legitimacy of Person 5's signature(s) in the extradition packet.
• Exhibit 92 is a transcript of an interview between defense investigator Abdel-Hafiz and an individual identified as TMF-1. ECF No. 208-16. TMF-1 is an Iraqi militia colonel whom the defense has identified as bearing a grudge against Ameen. ECF No. 258 at 6. The defense also states that he is the moving force behind Person 5's accusations against Ameen. Id. The transcript, like all of the evidence regarding TMF-1, is introduced in order to undermine Person 5's credibility. It suggests that Person 5 did not actually witness the murder and has ulterior motives for accusing Ameen. Thus, it is clearly evidence that is contradictory and the court cannot admit it. For the same reasons, Exhibits 95, 100, 104, and 113 are also excluded. ECF Nos. 208-19, 208-21, 208-25, 208-34.
• Exhibit 101 is a California Department of Motor Vehicles photograph of Ameen. ECF No. 208-22. This exhibit is excluded as irrelevant.
• Exhibit 102 is an Iraqi court document that details the release of another suspect in the victim's murder. ECF No. 208-23. This exhibit is excluded as irrelevant.
• Exhibits 106, 107, & 108 are word for word translations of the statements of Witness A, Witness B, and Person 5 that are contained in the extradition request packet. ECF Nos. 208-27, 208-28, & 208-29. These exhibits are admitted.
• Exhibits 109, 110, & 111 are affidavits from FBI agents involved in the questioning of Person 5 and Iraqi proceedings that developed the extradition request. ECF Nos. 208-30, 208-31, & 208-32. These exhibits are admitted insofar as they bear on the question of whether documents in or related to the extradition packet were forged. See ECF No. 160 at 21-22. They are otherwise excluded.
• Exhibit 114 contains a government letter regarding witness Hamid. ECF No. 208-35. This exhibit is admitted as relevant to Ameen's alibi.
• Exhibit 116 contains photographs of the handwriting added after the signatures on Iraqi court statements. ECF No. 217-5. This exhibit is admitted as relevant to the question of whether any of the signatures in the extradition packet were forged.
• Exhibit 117 is a November 8, 2019 statement by Russell Travers who, at that time, was the acting director of the National Counterterrorism Center. ECF No. 217-6. The statement discusses the high level of security scrutiny to which refugees are subjected. It also notes that, in the past decade, only two refugees to the United States went on to undertake attacks on the homeland. Both were radicalized in this country. This exhibit is excluded as irrelevant.
• Exhibits 118, 119, 120, and 121 are FBI 302 interviews of witnesses who reject the notion that Ameen was ever involved in terrorism. ECF Nos. 217-7, 217-8, 217-9, 217-10; see also ECF No. 216 at 47. The interviews date from 2016 and 2018. The court does not find these exhibits especially helpful in adjudicating the ultimate question of probable cause. Having considered their source, however, the exhibits are admitted.
• Exhibit 123 is an affidavit from law professor Haider Ala Hamoudi. ECF No. 220. Together with attachments (ECF Nos. 220-1 & 220-2), the affidavit describes the "severe and obvious deficits" in the Iraqi justice system. ECF No. 220 at 2. The court has previously noted that it is not permitted to weigh the fairness of the requesting country's justice system. See Neely v. Henkel, 180 U.S. 109, 123 (1901); see also Leiva v. Warden, 928 F.3d 1281, 1295 (11th Cir. 2019) ("We have neither the power nor competence to consider a foreign fugitive's concerns about the fairness of his country's criminal justice system, let alone halt his extradition on that basis—that kind of consideration is properly addressed to the Executive Branch."). This exhibit is excluded.
• Exhibit 124 is the report of document examiner Sean Espley. ECF No. 226. This exhibit and its attachments bear on the issue of possible forgeries in the extradition packet and is admitted.
• Exhibit 125 is a text message from the victim to TMF-1 on the day of the murder. ECF No. 239. In it the victim identifies individuals affiliated with ISIS and who were in Rawah that day. This exhibit is admitted.
• Exhibits 126, 127, and 129 relate to Person 1, a witness who claims to have seen Ameen in Rawah on the day of the murder. ECF Nos. 246-1, 250-5 (sealed), 249. These exhibits are admitted for the purpose of offering greater context as to Person 1's claim. They are excluded for the purpose of attacking Person 1's credibility.
• Exhibit 130 consists of two videos of the ISIS convoy in Rawah. ECF No. 258-1 (YouTube links in the exhibit description, videos provided to the court on a DVD). This exhibit is admitted.
• Exhibit 131 is the corrected translation of an Arabic Twitter post in the extradition packet. ECF No. 258-2. This exhibit is admitted.
• Exhibits 132, 133, 134, and 135 are exhibits related to Abu Anas Al-Sammarai, an ISIS official, who issued statements and orders on behalf of the organization upon the takeover of Rawah. ECF Nos. 258-3, 258-4, 258-5, & 258-6. These exhibits are admitted.
• Exhibit 136 is a text from a Rawah area police officer to the victim on June 21, 2014. ECF No. 258-7. This exhibit is admitted.
• Exhibit 137 is a Facebook post made by Ameen that the defense characterizes as "celebrating tolerance or challenging sectarianism." ECF No. 258-8. This exhibit is excluded for want of relevance.
• Exhibit 138 is a copy of the defense PowerPoint presentation from the December 4, 2019 hearing. ECF No. 258-9. This exhibit is admitted.
• Exhibit 139 is a copy of Ameen's DMV photograph that was used in a 2018 interview with Person 1. ECF No. 258-10. The defense argues that TMF-1 showed this photograph to Person 1 so that the latter would be able to falsely identify Ameen as the murderer. ECF No. 258 at 6. This defense exhibit bears on Person 1's credibility and is excluded.
• Exhibit 140 is a declaration of Alexander Key, a professor of Arabic and Comparative Literature at Stanford University. ECF No. 258-11. Professor Key states that the name "Abu Ians Al-Shami" is not a correct rendering of an Arabic name. This name arises in a story Person 1 told an FBI Special Agent. ECF No. 258 at 11. Person 1 told the agent that "Abu Ians Al-Shami" was his cousin. Id. The defense argues that the obvious error in rendering this name is indicative of the story's falseness. Id. It states that the incorrectly rendered name is likely a reference to the ISIS leader Abu Anas Al-Shami. Id. at 11-12. This exhibit is offered to attack Person 1's credibility and is excluded.
• Exhibit 141 is a declaration from Haqqi Rajab Yas, the head of the Rawah Municipal Council. ECF No. 258-12. It describes an exchange with Person 1 in which the witness admitted that they were not in Rawah on the date of the murder and, thus, could not have seen Ameen in a passing ISIS convoy. Id. at 2. The declaration is excluded for the purpose of undermining Person 1's credibility. Yas also states that Ameen was not in Rawah in June of 2014 and the exhibit is admitted insofar as it relates to Ameen's alibi.
• Exhibit 142 is a supplemental declaration from Ghassan Hameed Salman, one of Ameen's relatives. ECF No. 258-13 at 1. Salman states that Ameen was not in Rawah at the time of the murder and the exhibit is admitted insofar as it relates to the alibi. The rest of the declaration is excluded insofar as it is related to attacking the credibility of Person 1. Exhibits 144, 145, 146, 147, 150, and 151 (ECF Nos. 258-15, 258-16, 258-17, 258-18, 258-21, 258-22) are also excluded as attacks on Person 1's credibility.
• Exhibit 143 contains hate messages sent to Ameen by Sunni extremists. ECF No. 258-14. This exhibit is excluded for want of relevance.
• Exhibit 148 is a supplemental declaration of defense investigator Abdel-Hafiz. ECF No. 258-19. This declaration is excluded because it relates to attacks on the credibility of Persons 1 and 5.
• Exhibit 149 is an indicator that the victim's final text message was sent at 8:03 p.m. local Iraqi time. ECF No. 258-20. This exhibit is admitted.
• Exhibit 152 contains Ameen's Facebook posts documenting his learning of English in Turkey. ECF No. 258-23. This exhibit is excluded for want of relevance.
• Exhibits 153 through 157 are attached to the defense's brief (ECF No. 262) that refutes assertions about Ameen's terrorist affiliation made in the government's reply brief at ECF No. 261. These exhibits are admitted for that purpose.
• Exhibits 158 and 159 relate to a polygraph test that Ameen took and passed in March of 2020. ECF Nos. 265-1 & 265-2. Although the results, standing alone, add little, the exhibits are admitted to the extent they bear on Ameen's alibi. See In re Extradition of Strunk, 293 F.Supp.2d 1117, 1136-1137 (E.D. Cal. 2003) (Hollows, Mag. J.) (admitting polygraph evidence in an extradition hearing.)
The final exhibits (Nos. 160 through 184) pertain to Ameen's cell phone records. The government argues that the records should not be considered because they are not authenticated. ECF No. 294 at 6. It points out that the records lack a signature, the name and title of the individual providing the records, and bear no stamp, seal, or other attestation. Id. The court disagrees and finds them sufficiently authenticated. As the defense argues in its response, the records were obtained through a lengthy process involving the parties, the court, the State Department, and elements of the Turkish government. ECF No. 295 at 11-12. Documents from a Turkish court (ECF No. 295-8) and the Public Prosecutor's office in Ankara (ECF No. 295-9) corroborate the records' authenticity. The records themselves state that the requesting authority for the records was the Public Prosecutor of Ankara and that the records were prepared "based on the data sent by the related operators to BTK3 on the date of the process." ECF No. 289-5 at 2. Admission of evidence lies within the court's discretion, Klein, 573 F.2d at 1369, and it finds that the records are sufficiently authenticated.
The government also argues that the cell records should not be admitted because they are not obliterating evidence. ECF No. 294 at 36. It notes that the Ninth Circuit has defined obliterating evidence as being "reasonably clear-cut" and "of limited scope" and argues that the cell records are neither. Id. (citing Barapind v. Enomoto, 400 F.3d 744, 750 (9th Cir. 2005)). The court is unconvinced and the records are admitted. The records together with the user attribution evidence,4 as discussed below, appear decisive on the most salient point: Ameen was in Turkey, not Iraq, on the day of the murder. The records are admitted and discussed below.
I. The Government Case
The murder victim, Ihsan Abdulhafiz Jasim ("Jasim"), was a member of the Rawah police who had previously undertaken anti-terrorism efforts on behalf of the Iraqi national security forces. ECF No. 137-1 at 43, 70. The town of Rawah fell to ISIS on June 21, 2014. Id. at 38. Immediately thereafter, Jasim received a threatening telephone call warning that he would be killed and beheaded for his prior anti-terror efforts. Id. at 43.
The following day, June 22, 2014, a four-vehicle convoy loaded with ISIS fighters approached Jasim's home in Rawah. Id. Upon arrival, the ISIS fighters began firing at the house. Id. Jasim exited his home with a rifle and returned fire. Id. The firefight lasted ten minutes and ended with Jasim lying on the ground, alive but unable to continue fighting. Id. A person alleged to be Ameen stood over Jasim and, after calling him an American agent and an apostate, executed him with a firearm. Id. After the ISIS fighters left, Jasim was taken to an Iraqi hospital where a death certificate was issued on June 23, 2014. Id. at 102.
The extradition request is predicated on the statements of an individual claiming to have witnessed the murder. That lone eyewitness, referred to in the extradition packet as "Person 5," claimed that he saw Ameen commit the murder.5 Id. He was present in Jasim's house during the firefight and claimed that he went outside in time to see Ameen execute Jasim. Id. He would later identify Ameen as the killer in photo lineups for both the FBI and the Iraqi court. ECF Nos. 137-1 at 43, 206-1 at 5, 206-2 at 2, & 206-3 at 2.
There are three other witness statements in the extradition packet. Jasim's parents, referred to as "Person A" and "Person B," were in his home at the time of the murder.6 ECF No. 137-1 at 38-40. They, at least initially, recounted an ISIS attack consistent with the one described by Person 5 and confirmed that Jasim's body was taken to a hospital for the production of a death certificate. Id. Both offered and signed written statements indicating their belief that Ameen murdered their son in the manner described by Person 5. Id. However, unlike Person 5, they were not outside the home to witness the killing of Jasim. Instead, as indicated by Judge Dhiya, the investigating judge overseeing Ameen's case in Iraq, their statements regarding the date and manner of the ISIS attack are based on what Person 5 told them. ECF No. 194-1 at 12.
Persons A and B have since indicated their intent to disavow their statements in the extradition packet and withdraw their accusations against Ameen. Indeed, they have offered an alternate account of the murder that is inconsistent with their statements in the packet. ECF Nos. 142-17 at 5-7 (Exh. 36), 161-14 at 2 (Exh. 75) & 161-15 at 2 (Exh. 76). There are questions, however, as to whether the renunciation of their original statements is motivated by a genuine belief that Ameen is innocent or, as the government suggests, they are being pressured in some way by individuals supportive of Ameen and/or ISIS. Judge Dhiya, an Iraqi investigating authority, has authored an affidavit indicating that the statements of Persons A and B were: (1) given freely; (2) given in his presence; and (3) signed after both witnesses had been afforded a chance to review the transcriptions. ECF No. 194-1 at 12.
In a third supplement to the official extradition packet, the Republic of Iraq has added testimony from another witness, "Person 1," who alleges that, on the day of the murder, he saw Ameen riding in an ISIS convoy as it made its way through Rawah. ECF No. 235-3 at 4. He subsequently heard gunshots and was told (at some later time) by an unidentified family member that Ameen had killed Jasim. Id.
Finally, the government's briefs (ECF No. 261 at 56 & ECF No. 294 at 35) have alluded to a witness identified only as "Person 7" who also placed Ameen in Rawah at the time of the ISIS takeover. This person's testimony was not part of any official extradition document submitted by Iraq. Defense counsel expressed surprise in their reply brief and had difficulty determining who this witness was. ECF No. 295 at 32 ("It is totally unclear where this fifth witness, Person 7, comes from."). Person 7's testimony appears only in a search warrant that was provided to the court in conjunction with the search of Ameen's Sacramento apartment and vehicle. The government's previous position was that the court could only find probable cause based on materials in the extradition packet and its official supplements. ECF No. 204 at 3-5. At a hearing held on January 6, 2020, the court indicated its intention to consider search warrant material concerning Person 1. ECF No. 253 at 4 ("[M]y inclination was to consider the information about the statement made by Person 1, and I was first made aware of that statement when I issued the search warrant for the defendant's home and the vehicle."). The government stated that the question of whether to look beyond the four-corners of the packet was moot because the same information had been submitted by Iraq through diplomatic channels. Id. at 6. The court agrees. By contrast, the testimony of Person 7 was not discussed at that hearing, save at the end of the hearing when Ameen's counsel noted that the same search warrant documents also identified Person 7 as a possible witness. Id. at 95.
The government's witnesses and their reliability is discussed in greater detail in the analysis to follow.
II. The Defense Case
The defense argues that Ameen was in Turkey when the murder was committed. It has provided numerous declarations supporting that contention. See, e.g., ECF No. 142-1 at 10-12 (Exh. 4); ECF No. 142-14 at 1-3, 6-25 (Exhs. 12, 14-17). The defense also relies on sign-in sheets from the Mersin Immigration Office, where Ameen was required to sign in weekly to preserve his refugee status. ECF No. 142-12 at 20-23 (Exh. 11-T). It has produced the results of a polygraph test that Ameen passed in which he stated that he was not in Iraq on the day of the murder. ECF No. 265-2 at 12 (Exh. 159). Finally, the defense has submitted Ameen's cell phone records which, as discussed infra, show that his phone was in Turkey on the date of the murder. ECF Nos. 289 & 295 (and attached exhibits).
Separately, the defense has offered evidence that the witnesses supporting extradition are unreliable. The court agrees, but for reasons that fall outside the defense's impeachment evidence, which the court has already concluded that it cannot admit. Thus, the court will forego a detailed description of the impeachment arguments and evidence that will not be considered.
The court's task in these proceedings is to determine: (1) whether the fugitive is accused of an extraditable crime7 and (2) whether there is probable cause to believe the fugitive committed the crime he is charged with. Santos, 830 F.3d at 991. Probable cause has generally been defined as sufficient evidence to convince a person "of prudence and caution" that a crime was committed and that the accused committed it. See Carroll v. United States, 267 U.S. 132, 160-61 (1925); see also Illinois v. Gates, 462 U.S. 213, 235 (1983) (holding that probable cause entails a degree of certainty that is more likely than not). The Supreme Court has compared an extradition hearing to a grand jury investigation. Charlton v. Kelly, 229 U.S. 447, 461-62 (1913). It follows that the extradition court is not tasked with determining the fugitive's guilt or innocence. Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1981) ("It is fundamental that the person whose extradition is sought is not entitled to a full trial at the magistrate's probable cause hearing."). Nonetheless, the extradition court is not to wield a "rubber stamp." Santos, 830 F.3d at 1006 (quoting Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011)).
I. Ameen's Alibi
The court previously indicated its intent to allow Ameen to present alibi evidence in this case. ECF No. 160 at 14. In so doing, the court distinguished between obliterative alibi evidence and alibi evidence that is merely contradictory. The court reasoned that the former should be admissible and the latter excluded. This court is not the first to draw this distinction. See In re Extradition of Gonzalez, 52 F.Supp.2d 725, 739 (W.D. La. 1999) ("Evidence of an alibi defense is therefore admissible if it negates or obliterates probable cause, but not if it merely controverts the evidence of the requesting country."); In re Extradition of Valles, 268 F.Supp.2d 758, 772 (S.D. Tex. 2003) ("Respondent's evidence of an alibi defense is therefore admissible if it negates or obliterates probable cause."); United States v. Andrade, No. 06-MC-9039, 2006 U.S. Dist. LEXIS 70040, at *10, 2006 WL 2729268 (D. Or. Sept. 25, 2006) (holding that "alibi evidence may be admissible if it absolutely negates or obliterates probable cause."). The court has not been given reason to reconsider this position. It now turns to the substantial evidence that Ameen never left Turkey.
It cannot be disputed that, in the months prior to the murder, Ameen was living as a refugee in Mersin, Turkey. He had left Iraq for Turkey in 2012 (see, e.g., ECF No. 142-1 at 2 (Ex. 2)) and he eagerly sought resettlement in the United States. ECF No. 142-2 at 10-11 (Exh. 11, Declaration of Zaid Hydari) ("The rest of the contact log shows Mr. Ameen's cooperation with the entire resettlement process. All of the documentation I have reviewed shows that Mr. Ameen readily answered calls and attended meetings with each agency involved in his case."). But in the government's telling, Ameen travelled from Mersin to Rawah in the weeks or days before the murder. ECF No. 261 at 57 ("Ameen's whereabouts between May 22, 2014 (after his USCIS interview) and July 7, 2014 (his medical appointment in Turkey) are unaccounted for by any incontrovertible evidence."). Between May 22, 2014 and July 7, 2014, he: (1) travelled the six hundred miles8 from Mersin to Rawah, crossing war-torn Syria; (2) joined ISIS fighters in or near Rawah; (3) took on a leadership role;9 (4) murdered Jasim (and perhaps conducted other military or terrorist operations on behalf of ISIS); and (5) then promptly returned to his life as a refugee in Turkey. Considering the obliterative alibi evidence presented by the defense, this series of events is simply not plausible.
A. The Government's Dubious Account
The government's version of events, standing alone, calls for some degree of skepticism. The court does not claim any geo-political or military expertise, but Ameen's alleged return to Rawah on behalf of ISIS makes little sense. As discussed below, he and his family had long since fled Iraq to Turkey and were awaiting a refugee resettlement process with which they had been fully cooperative. Presume that Ameen is a member of ISIS in 2014. He has made his way to Turkey masquerading as a refugee, has thus far maintained his cover, and is in the process of using resettlement systems to reach the United States (or, failing that, perhaps some European nation that ISIS views with disfavor). Sometime between May 22, 2014 and June 22, 2014 Ameen decides — either on his own or at the direction of some higher authority within ISIS — to undertake a trip back to Rawah. In order to do so, he risks running afoul of Turkish authorities who do not abide refugees moving freely in and out of the nation's borders. ECF No. 142-2 at 5 (Exh. 11).10 He risks being captured or killed by forces unfriendly to ISIS that are participating in the Syrian civil war. Once in Rawah, he participates in the murder of Jasim. The accounts in the extradition packet paint the gun battle preceding the murder as a one-sided affair that Jasim could not have hoped to win. See, e.g., ECF No. 137-1 at 40 (describing four vehicles occupied by "large numbers of ISIS" and stating that the battle was over quickly "because of the large number of attackers and the intensity of the gunfire . . . ."). Ameen's presence can hardly be said to have been essential or necessary to the killing.11 Curiously, the extradition packet is silent as to other 2014 ISIS operations Ameen participated in during his time in Rawah. Two witnesses, Person 1 and Person 7, purport to place him in Rawah at that time, true. These accounts have little to offer, even through hearsay, about how else Ameen served ISIS in Rawah, however. If Ameen was an ISIS commander as Person 1 attests, one would expect his involvement in the occupation of Rawah to be, if not obvious, at least capable of multiple forms of substantive corroboration. Did Ameen return to Rawah, lead a coordinated assault on a lone, undefended victim, and then make the long, perilous trip back to Turkey? A strange, borderline unbelievable decision, if so. Perhaps the inability to identify other ISIS operations in which Ameen was involved is a consequence of witnesses being reluctant to speak about that period out of fear of reprisal. Or, more likely based on compelling evidence before the court, it is a consequence of Ameen being in Turkey at the time of the murder.
B. The Refugee Logbooks
Turning to the evidence produced by the defense, there are physical logbooks establishing that Ameen signed in, as Turkish authorities required of refugees,12 at the Mersin immigration office on June 19, 2014 and again on June 26, 2014. ECF No. 142-12 at 20-23 (Exh. 11-T). The logbooks are undated, but a defense investigator travelled to Turkey, to the Mersin Immigration Office, and requested Ameen's sign-in logs for the June 2014. Id. at 24. The investigator emphasized that the most relevant logs pertained to the sign-in dates immediately before and immediately after the June 22, 2014 murder (June 19, 2014 and June 26, 2014). Id. Those logbooks were pulled by employees at the office and copies were given to the defense team. Id. at 24-25. Ameen's sign-ins on June 19 and June 26 are further corroborated by a notarized letter from the Provincial Directorate for Migration Management that attests that Ameen remained compliant with all obligations during his stay, including completing required sign-ins. ECF No. 142-3 at 19-20 (Exh. E). Thus, the court accepts that the provided sign-in logs are for June 19, 2014 and June 26, 2014 and that they belong to Ameen. Ameen had, at best, seven days to make the perilous, six-hundred mile cross-borders trip from Mersin to Rawah, to commit the murder on June 22, and to hurry back into Turkey for his June 26 sign-in—all the while evading the Turkish authorities that had confiscated his passport.
C. Witness Declarations
Numerous witnesses have provided declarations attesting to Ameen's presence in Turkey (or absence from Rawah) at the time of the murder. See, e.g., ECF No. 142-1 at 2-3 (Exh. 2, Declaration of Aous Mounir Saood), 10-11 (Exh. 4, Declaration of Omar Hamid), 16-17 (Exh. 6, Declaration of Ahmed Azzam). Witnesses testified that Rawah was a small town and comings and goings were noted. See, e.g., ECF No. 142-14 at 2 (Exh. 12, Declaration of Mahdi Saleh Othman) ("Rawah is so small that of course I would have known if Omar had come back to town in June 2014 . . . ."). A text from Jasim, sent the day of the murder, lends additional credence to these declarants. Several ISIS threats are identified by name therein. ECF No. 239 at 2. Ameen is not among them.
D. Polygraph Evidence
Standing alone, the court would not put much emphasis on Ameen's polygraph test results. See United States v. Scheffer, 523 U.S. 303, 309 (1998) ("[T]here is simply no consensus that polygraph evidence is reliable.").13 Even in conjunction with the other evidence, the court does not lend it great weight. The test results do, however, reinforce14 the court's conclusion that the defense has obliterated probable cause. The test was conducted by Oded Gelfer, a certified forensic law enforcement polygraph examiner who speaks Arabic. ECF No. 265-1 at 1, 4. Ameen passed the test after being asked whether he was in Rawah in June 2014 and whether he shot Jasim. ECF No. 265-2 at 2-5.
E. Ameen's Cell Records
The final piece of evidence, Ameen's cell records, is the most critical. Pursuant to Letters Rogatory issued by the court, detailed cell phone records were produced by the Information and Communications Technology Ministry of the Turkish Government. EFC No. 289. Those records are referred to in the briefs as "Turkcell records." On June 22, 2014, the day of the murder, Ameen's cell phone received two calls that routed through a cell tower in Mersin, Turkey. ECF No. 289 at 7; ECF No. 289-7 at 1 (Exh. 164). The government argues that this data shows only that Ameen's cell phone was in Turkey; it does not establish the whereabouts of Ameen himself. ECF No. 294 at 14 ("The two incoming calls only demonstrate that the -5280 phone was in Mersin."). In so doing, the government fails to account for the user attribution evidence. As the defense argues, the phone belonged to Ameen and the evidence shows that he, and not any other member of his family, was its primary user. See ECF No. 295 at 14-16. In Turkey one must present a government issued identification to obtain a phone. Ameen obtained his in 2012 using his Iraqi passport.15 Turkcell retained the passport information which was used to confirm that the phone was issued to Ameen.16 And, as the defense points out, the Turkish cell data only registers completed calls. Id. at 17. The extensive user attribution evidence detailed by the defense indicates that Ameen repeatedly used the cell phone issued to him. There is no user attribution evidence presented that anyone else used it. It is true that nothing in the record eliminates the possibility, however improbable based on the evidence of record, that someone else had the phone on June 22, 2014. But that does not save the government's case for probable cause. The government is tasked with showing evidence that Ameen's involvement in the murder is probable, not that some series of events, however unlikely, renders it theoretically possible. Inversely, the defense's success rests on obliterating probable cause, not in disproving fringe possibilities.
The government raises other arguments against the cell data. All are unconvincing. The court will discuss them briefly. First, the government argues that the defense's reliance on the Supreme Court's decision in Carpenter v. United States, 138 S.Ct. 2206 (2018) is misplaced. In Carpenter, the Supreme Court described historical cell phone data as "near perfect surveillance, as if [the government] had attached an ankle monitor to the phone's user."17 Id. at 2218. The government distinguishes Carpenter by arguing that cell site location in that case was more robust, consisting of "taps" on the wireless network multiple times in a single minute. ECF No. 294 at 10. By contrast, the cell data in this case provides the approximate location of the phone only when there is a call or text. Id. This argument might be persuasive if Ameen were charged with a murder occurring nearer his home in Mersin. In that case, it might be worth delving into these limitations. But the distinctions drawn by the government are meaningless where the alleged murder occurred approximately six-hundred miles from the cell tower. The phone did not travel to Rawah on June 22, 2014.
The government argues that at least some of the phone records indicate that Ameen had a relationship to an individual involved in terrorism. ECF No. 294 at 26. The relevancy of this contention is strained at best. The individual in question, Marwan Salih, was sanctioned in his role as CEO of "Redin Exchange," an entity which the Treasury Department determined was involved in fund transfers between Iran and Hamas.18 In a press release the Treasury Department wrote that "Redin Exchange has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to, HAMAS."19 It made no mention of ISIS. There is no indication that Hamas had any involvement in events relevant to this case.
Finally, in an argument whose inclusion is perplexing, the government contends that the phone records establish that Ameen could travel long distances quickly. ECF No. 294 at 24. The government cites a trip Ameen took from Mersin to Istanbul and back in less than forty-eight hours and argues that "it would be in keeping with that transit time that Ameen could travel from Mersin to Rawah with a relatively quick turnaround." Id. But there can be no straight-faced argument that a trip made within Turkish borders is equivalent to a cross-border trip across a Syrian warzone (and then into an area of conflict in Iraq).
II. The Reliability of the Government's Witnesses
In finding that Ameen's alibi evidence obliterates probable cause, the court necessarily rejects witness accounts that place him in Rawah at the time of the murder. Obviously, he could not be present in Turkey and Iraq at the same time. Obliterative evidence, as its name suggests, does not exist in a vacuum. It acts upon the evidence advanced by the requesting nation. The court previously identified the relationship between the parties' evidence as a kind of sliding scale.20 Thus, it behooves the court to discuss the witness evidence offered in support of extradition and, more specifically, its unreliability. In so doing, the court recognizes that the body of case law that cautions against weighing witness credibility in extradition hearings is substantial. The court has adhered to that precedent by excluding numerous documents the defense has submitted for the purpose of undermining witness credibility.21 But, implicit in the purpose of these probable cause proceedings is the court's ability to reject witness testimony for want of reliability. The court does not determine guilt or innocence, true, but it must assure itself that the standards for probable cause under United States law are satisfied. If the evidence before the court shows it is more probable that Ameen was in Mersin, Turkey at the time of the murder, the court cannot also conclude that there is probable cause that he committed the murder that occurred in Rawah, Iraq. Thus, there is some tension between the "accept as true" rule argued by the government (ECF No. 294 at 36, arguing that all of Person 5's statements must be accepted as true)22 and the requirement that the requesting nation present evidence sufficient to satisfy the judicial standards for probable cause under United States law. See Santos, 830 F.3d at 1006.
In analyzing the evidence here, the standards for determining whether probable cause exists to issue a search warrant is a helpful analogue. To obtain a search warrant, law enforcement must show "by sworn evidence presented to a magistrate that probable cause exists to believe that an offense has been committed and that items related to that offense, such as fruits of the crime, will be found on the premises sought to be searched at the time the warrant is issued." United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988) (internal citation and quotations omitted). Where a court relies on statements of an informant to find probable cause, it must consider that person's reliability, and basis of knowledge. See Gates, 462 U.S. at 230; see also United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001)("When a search warrant is based solely on an informant's tip, the proper analysis is whether probable cause exists from the totality of the circumstances to determine a sufficient level of reliability and basis of knowledge for the tip."). Under United States law, in determining probable cause a witness's propensity to lie or to offer inconsistent accounts is part of the "totality of circumstances" to be evaluated and cannot be ignored. See United States v. Hall, 113 F.3d 157, 159 (9th Cir. 1997) ("If [the informant] was not worthy of belief, then this would not amount to probable cause.").
The "totality of the circumstances" principle articulated in Gates has been applied in extradition hearings. See, e.g., In re Extradition of Howard, No. 2:15-mj-00627-NJK, 2017 U.S. Dist. LEXIS 103243, *20 (D. Nev. July 3, 2017); In re Camelo-Grillo, No. CV 16-9026 JVS (SS), 2017 U.S. Dist. LEXIS 106389, *14 (C.D. Cal. Jul. 10, 2017). And extradition courts have weighed the reliability of witnesses in determining whether probable cause to certify exists. See, e.g., Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir. 1986) ("The credibility of witnesses and the weight to be accorded their testimony is solely within the province of the extradition magistrate."); In re Extradition of Singh, 124 F.R.D. 571, 577 (D.N.J. 1987) ("[W]hen a court in an extradition proceeding is presented with evidence through affidavits, the court may conclude, on review of the affidavits submitted, that there are insufficient indicia of reliability or credibility to establish probable cause."); United States v. Lui Kin-Hong, 110 F.3d 103, 120 (1st. Cir. 1997) ("Inherent in the probable cause standard is the necessity of a determination that the evidence is both sufficiently reliable and of sufficient weight to warrant the conclusion.").
The witnesses at issue, referred to as Persons 1, 5, and 7, were first brought to the court's attention in an application for a search warrant of Ameen's apartment and vehicle. The court issued that warrant prior to the start of these proceedings based on statements primarily attributed to Person 5 and, to a lesser extent, the statements attributed to the other two persons referenced in the affidavit in support of the warrant. But the search warrant was issued without the information that has since been developed, including the evidence indicating that Ameen was in Turkey at the time of the offense. The warrant application was at one time included in the record of this case as defense exhibit 112. ECF Nos. 208 at 10, and 208-33. That exhibit has since been withdrawn. ECF No. 296 at 10.23 Nevertheless, the court has indicated its intent to consider the warrant application in these proceedings. ECF No. 253 at 93-94; see also United States v. Amabile, No. 14 M 1043 (VMS), 2015 U.S. Dist. LEXIS 96137, *8 n.6 (E.D.N.Y. Jul. 16, 2015) (collecting cases that establish the proposition that extradition law does not preclude the court from considering documentary evidence outside of the extradition request). The government has itself relied upon these materials by referring to Person 7's warrant application testimony in its briefing. ECF No. 261 at 56 ("An additional witness—Person 7—placed Ameen in Rawah in or about the time of the fall of Rawah."); ECF No. 294 at 35 (referring to "the statement of Person 7, who had no knowledge of the murder but placed Ameen in Rawah at or around the time of the fall of Rawah."). The warrant application, juxtaposed with the extradition request, casts serious doubt on the reliability of Persons 1, 5, and 7.
A. Person 7
In the warrant application, Person 7 alleges that Ameen was a prominent member of ISIS and claims to have seen Ameen in Rawah before its fall to ISIS. These statements are vague and ultimately unreliable. They do not offer a date, even an approximate one, on which Person 7 claims to have seen Ameen in Rawah. "Before the fall of Rawah" is a time period so undefined as to be practically useless. Temporal questions aside, the unreliability of Person 7 is compounded by want of other context, particularly in light of the evidence that has been presented that Ameen was in Turkey at the time. What was Ameen doing when Person 7 saw him before Rawah's fall? What identifiers made Person 7 certain that the individual observed was Ameen? Did Person 7 see him once or multiple times? Finally, as noted above, this witness claims no knowledge of the murder at issue.
B. Person 1
Person 1's allegations as recited in the warrant application and extradition packet are identical.24 Person 1 claims to have been in Rawah on the date of the murder.25 ECF No. 240-1 at 8. In the late afternoon, Person 1 saw a three car ISIS convoy and claims that Ameen was seated in the passenger seat of one of the cars. Id. Person 1 surmised, though does not say how, that Ameen was likely the convoy's commander. Id. The convoy continued past Person 1 and stopped in front of Jasim's home. Id. Person 1 states that he heard a blast of rifle fire and fled the area. Id. Person 1 was later told by family members that Ameen had killed Jasim with that burst of rifle fire. Id.
In assessing probable cause, the court must address the evidence as to the reliability of Person 1's identification of Ameen. First, the identification is based on a brief observation through the window of a moving vehicle. Second, the murder is alleged to have occurred at seven o'clock in the evening. ECF No. 137-1 at 43 (Statement of Person 5). In reality, the murder occurred later, at some time after 8 p.m. See ECF No. 258-20 (Exh. 149) (Jasim's final outgoing text occurred at 8:03 p.m. local Iraqi time on June 22, 2014). Given that Person 1 alleges that the murder occurred a short time after seeing the convoy pass, the claim that the identification was made in "the late afternoon," ECF No. 240-1 at 8, is not plausible. Perhaps more importantly, Person 1's alleged identification of Ameen in a moving vehicle would have taken place with little or no daylight. See ECF No. 258 at 7 (defense brief indicating that, on June 22, 2014, sunset occurred at approximately 7:15 p.m. Iraqi time). Third, Person 1's claim of having heard a single burst of rifle fire and subsequently learning that it was this burst that killed Jasim cannot be reconciled with Person 5's statement in the extradition request packet that a prolonged, ten-minute gun battle occurred between Jasim and his attackers.26 ECF No. 137-1 at 43 ("[Jasim] went outside the house and returned fire at [the] ISIS terrorists using his Kalashnikov rifle. The engagement continued with the terrorist elements for about 10 minutes."). Finally, the court notes that Person 1's allegations are derived from summations of an FBI agent's interview notes rather than Person 1's own words.27 The distinction is subtle, but meaningful. A summation captures the fundamentals of a witness's claims, but it can omit nuance or important details that the interviewing agent(s) might, at the time, have thought inconsequential.
C. Person 5
Person 5 is the government's most important witness because that person alone claims to have witnessed Ameen kill Jasim. A comparison of Person 5's statement in the extradition request and Person 5's summarized account in the warrant application reveals several important inconsistencies.28 In the extradition request, Person 5 states that he and Jasim were inside the house when the ISIS convoy approached. ECF No. 137-1 at 43. When the ISIS fighters began to fire at the house, Jasim went outside and returned fire. Id. After the shooting stopped, Person 5 went outside and saw Jasim on the ground and Ameen standing over him. Id. Person 5 then claims to have seen Ameen shoot and kill Jasim at close range. Id.
By contrast, Person 5's statements to the FBI in the warrant application make no mention of a firefight. Instead, he claims that the ISIS convoy arrived at the house and Ameen approached Jasim, who was presumably already outside. ECF No. 142-17 at 11. Jasim told Person 5 to leave and get some tools. Id. After Person 5 had left, Person 5 heard gunshots and ran back towards Jasim. Id. Person 5 arrived to see Jasim crawling on the ground with gunshot wounds to his arms, chest, and legs. Id. Jasim subsequently succumbed to his wounds, but Person 5 does not allege that Ameen executed him with a final shot. Id. The court acknowledges that witnesses, especially those that have lived through traumatic events, may change details of their account over time. Minor discrepancies should not automatically destroy witness credibility or imply dishonesty. Here, however, the inconsistencies are substantial and undermine reliability, particularly when they are viewed in light of evidence showing that Ameen was not in Iraq at the time. Under Person 5's account did a ten-minute firefight between Jasim and his attackers occur? Did Ameen execute Jasim or leave him to die from his wounds? Did Person 5 see the shooting or not? These are key details that one would expect to remain constant. But they do not.
Finally, Person 5's reliability is impacted by his having articulated allegations against Ameen that are absurd on their face. In the extradition request, he claims that Ameen was responsible for a kidnapping that occurred in Iraq in 2016. ECF No. 137-1 at 61, 99. Ameen was indisputably in the United States at that time. In the warrant application, Person 5 told FBI investigators that Ameen was a close associate of the leader of ISIS, Abu Bakr Al-Baghdadi. He claimed that he saw Ameen and Al-Baghdadi together in Rawah in the summer of 2014. The court finds it unnecessary to describe all the reasons why a close association between Ameen and Al-Baghdadi is unlikely. Suffice it to say, there is no corroborative evidence in the record that Ameen occupied such a high-level leadership role in ISIS.
D. Witnesses A and B
Witnesses A and B have offered statements that essentially recount Person 5's account of the murder in the extradition request. It is undisputed that neither saw the murder. Nor did either see Ameen in Rawah at or around the time of the murder. Both A and B were in Jasim's house when the killing occurred; their statements are based on what Person 5 told them after the fact. ECF No. 194-1 at 12. The value of their statements turns on the reliability of the information relayed by Person 5 who, as stated above, has demonstrated that he/she is simply not a reliable witness.
The court concedes that it has been difficult to reconcile the restrictive body of extradition case law with the applicable standards under United States federal case law for establishing probable cause and the circumstances of this case. It is regrettable that the case has taken more than two years to litigate.29 Whatever procedural doubts precede it; the court is convinced that the decision not to certify Ameen's extradition is correct. The evidence strongly supports that Ameen never left Turkey in June 2014, and the record before the court, taken in its entirety, does not establish probable cause that he was responsible for Jasim's murder.
Accordingly, the request for a certificate of extradition is denied. Unless there are pending domestic charges on which the government can justify Ameen's continued detention, it is ORDERED that Omar Abdulsatar Ameen be immediately released from custody. At the time of writing, the court has not been made aware of any such pending charges.