Opinion
23-35139
06-07-2024
JULIAN ESTRADA GOMEZ, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
NOT FOR PUBLICATION
Submitted June 7, 2024 [**] Portland, Oregon
Appeal from the United States District Court for the District of Oregon D.C. No. 3:22-cv-00595-MC Michael J. McShane, District Judge, Presiding
Before: GRABER, RAWLINSON, and SUNG, Circuit Judges.
MEMORANDUM [*]
Mexico seeks the extradition of Petitioner Julian Gomez, a lawful permanent resident of the United States, to face trial in Mexico for the aggravated homicide of his adult son, Julian Estrada Ramirez. The extradition court certified Petitioner's extradition pursuant to 18 U.S.C. § 3184. Petitioner challenged that certification, but the district court denied his habeas corpus petition, brought under 28 U.S.C. § 2241, and he timely appeals. On de novo review, United States v. Knotek, 925 F.3d 1118, 1124 (9th Cir. 2019), we affirm.
1. Petitioner first contends that there is insufficient evidence to establish probable cause that he committed premeditated murder, murder by lying in wait, or murder using unfair advantage, as charged. In assessing probable cause, we ask whether, under the totality of the circumstances, a reasonable and prudent person would think that there is a "fair probability" that the accused person committed the crime for which extradition is sought. United States v. Collins, 427 F.3d 688, 691 (9th Cir. 2005); see also Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (noting that, in the extradition context, courts ask "whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty"); Mainero v. Gregg, 164 F.3d 1199, 1205 (9th Cir. 1999) ("A 'reasonable ground' exists where the record contains 'competent evidence to support the conclusion that there was probable cause to believe the petitioner guilty.'" (citation omitted)), superseded by statute on other grounds, Pub. L. No. 105-277, § 2242 (1998). Thus, the sole question is whether the prosecution's evidence "makes a prima facie case of guilt sufficient to make it proper to hold the party for trial." Charlton v. Kelly, 229 U.S. 447, 461 (1913). The threshold of probable cause is met here.
Among other evidence: The victim's body was discovered in the driver's seat of his pickup truck, which was still running when he was found. A rifle in the truck was positioned for transport, not immediate use, and the victim's hands held no weapon. The victim was shot twice in the left side of the head, and several additional shots hit the truck. Ballistic evidence established that the shots were fired from a low angle within seven feet of the vehicle. The area contained bushes, trees, and other plants that one reasonably could find would have hidden the shooter from the victim's view. Petitioner was angry with the victim for insulting him several times in the weeks leading up to the killing. Petitioner admitted the killing to relatives and fled from Mexico to the United States. These facts, along with others in the record, allow a reasonable inference of aggravated homicide. The possibility of drawing alternative, innocent inferences does not negate probable cause. See Collins v. Loisel, 259 U.S. 309, 316 (1922) ("The function of the [court charged with assessing whether probable cause exists] is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.").
2. Petitioner next argues that the charged crime would not be punishable in the United States as the relevant extradition treaty provides-the so-called dual criminality requirement. See Extradition Treaty Between the United States of America and the United Mexican States, U.S.-Mex., art. II, ¶¶ 1, 3, May 4, 1978, 31 U.S.T. 5059, as amended by Protocol to the Extradition Treaty Between the United States of America and the United Mexican States of May 4, 1978, U.S.-Mex., Nov. 13, 1997, S. Treaty Doc. No. 105-46 (1998); see also Caplan v. Vokes, 649 F.2d 1336, 1343 (9th Cir. 1981) ("[N]o offense is extraditable unless it is criminal in both jurisdictions."). We disagree.
Our focus is on the conduct charged; precise matching of elements is not required. See Clarey v. Gregg, 138 F.3d 764, 765 (9th Cir. 1998) (noting that "differences between statutes aimed at the same category of conduct do not defeat dual criminality"). Murder is a crime, punishable by imprisonment for at least one year, both in the United States and in Mexico. Compare 18 U.S.C. § 1111 with Zacatecas Crim. Code, Ch. II, art. 293, 299, Ch. III, art. 301, sec. 1 (aggravated homicide). In addition, the U.S. State Department has concluded specifically that the charged crime is extraditable under the treaty with Mexico, an opinion that is entitled to "great weight." Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).
3. Finally, Petitioner asserts that the district court erred by declining to admit into evidence his declaration, which states that he killed the victim in selfdefense. We are not persuaded. Courts do not consider evidence from the person whose extradition is sought that merely contradicts the evidence submitted by the requesting government or that would lead to an evidentiary dispute. See Barapind v. Enomoto, 400 F.3d 744, 749-50 (9th Cir. 2005) (per curiam) (noting that "extradition courts do not weigh conflicting evidence in making . . . probable cause determinations" (brackets omitted) (citation and internal quotation marks omitted)). Petitioner's declaration conflicts with the physical and ballistics evidence and thus is contradictory or, at least, would lead to an evidentiary dispute. Moreover, defenses, such as Petitioner's claim of self-defense, do not factor into the probable cause inquiry. Santos v. Thomas, 830 F.3d 987, 992 (9th Cir. 2016) (en banc).
To the extent that Petitioner claims a violation of his due process rights, his argument is not well taken. He received notice and a hearing as required by 18 U.S.C. § 3184 and had no due process right to introduce contradictory evidence. See Vo v. Benov, 447 F.3d 1235, 1247 (9th Cir. 2006) (noting that an extradition court's refusal to consider particular evidence does not violate due process).
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).