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In re Extradition of Aquino

March 4, 2010

IN THE MATTER OF THE EXTRADITION OF MICHAEL RAY BEGUAS AQUINO


The opinion of the court was delivered by: Salas, Magistrate Judge

OPINION

This matter comes before the Court by way of the Government's*fn1 application for the extradition of Michael Ray Beguas Aquino ("Aquino") pursuant to 18 U.S.C. § 3184. The Court has considered the submissions made in support of and in opposition to the pending application, and conducted a hearing on November 23, 2009. Based on the foregoing, the Government's application is granted .

First, the Court shall address Aquino's four objections to the Government's application raised during the Extradition hearing. Next, the Court will outline the factual background of this matter. Finally, the Court will consider the legal issues and their application to the facts of the instant matter.

I. OBJECTIONS

(a). Objection # 1

Aquino's first objection relates to the use of certain statements within the Government's package, specifically Exhibit 2. Extradition Hr'g Tr. 6:1-11, November 23, 2009. Within Exhibit 2, Aquino objects to the use of certain hearsay statements. Aquino relies on 18 U.S.C. § 3190 and the Republic of the Philippine's Rules of Evidence, located in Annex V of the Government's package. Essentially Aquino argues that because some of the statements within the exhibit may not be admitted in the Philippines, those particular statements should not be admissible in the court determining extraditability. Id. at 9:20-24. Aquino's objection is misplaced and as such is overruled.

18 U.S.C. § 3190 provides that:

[d]epositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall 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 that the same, so offered, are authenticated in the manner required.

18 U.S.C. § 3190. In this Court's view, the statute's operative language is that the depositions or other papers shall be received and admitted as evidence...if they shall be properly and legally authenticated. Id. Moreover, the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the evidence is authenticated in the manner required. Id. Aquino, during the extradition proceeding, asserted that the Government's second exhibit did comply with the November 22, 1996 Extradition Treaty between the United States of America and the Republic of the Philippines (the "Treaty") and was properly authenticated. Extradition Hr'g Tr. 5:23-25, November 23, 2009.

Thus, because the documents are in compliance with the Treaty, Aquino seeks to utilize the Rules of Admissibility from the wanting jurisdiction to keep certain hearsay statements from this Court's purview. This objection raised by Aquino is not unique. In O'Brien v. Rozman, 554 F.2d 780, 783 (6th Cir. 1977), the appellant claimed that hearsay evidence was not admissible because under 18 U.S.C. § 3190 it would not have been admissible for similar purposes in Canada. O'Brien v. Rozman, 554 F.2d at 783 (6th Cir. 1977). The Sixth Circuit rejected the appellant's argument and explained that 18 U.S.C. § 3190 merely provides the vehicle for measuring the authenticity of the documents for the purpose of their use in extradition proceedings and does not address the competency of the evidence for the purposes of 18 U.S.C. § 3184. O'Brien v. Rozman, 554 F.2d 780, 783 (6th Cir. 1977) citing , Argento v. Horn, 241 F.2d 258, 263 (6th Cir.) cert. denied 355 U.S. 818, 78 S.Ct. 23, 2 L.Ed.2d 35 (1957); Bingham v. Bradley, 241 U.S. 511, 517, 36 S.Ct. 634 (1936).

This Court agrees with the Rozman court's analysis and interpretation of the statute. This Court finds that the statute's purpose is to measure the authenticity of documents for their use in extradition proceedings and is not to determine the competency of evidence which may or may not be used in the wanting jurisdiction. Indeed, the statute is clear--upon the Court's finding of proper and legal authentication, the documents shall be admitted.

In addition to the Rozman decision, this Court deems it important to note that hearsay evidence is admissible during extradition proceedings. See, Collins v. Loisel, 259 U.S. 309, 317, 42 S.Ct. 469, 66 L.Ed. 956 (1922); Bingham v. Bradley, 241 U.S. 511, 517, 36 S.Ct. 634, 60 L.Ed. 1136 (1916); United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726, 730 (9th Cir. 1975); U.S. ex rel. Eatessami v. Marasco, 275 F. Supp. 492, 494 (S.D.N.Y. 1967); accord, In the Matter of the Extradition of Ben-Dak, 06-1540 (GWG), 2008 WL 1307816 (S.D.N.Y. Apr. 11, 2008); Simmons v. Braun, 627 F.2d 635, 636 (2d Cir. 1980); Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006); In the Matter of the Extradition of Bolanos, 594 F. Supp. 2d 515, 519 (D.N.J. 2009). In fact, Aquino agrees with this very proposition. During the extradition proceedings Aquino, through his Counsel, asserted that "in fact the Government is allowed to introduce it and the Court is allowed to consider hearsay." Extradition Hr'g Tr. 8:1-2, November 23, 2009.

Therefore, because 18 U.S.C. § 3190 merely provides the vehicle for measuring the authenticity of documents for their use in extradition proceedings; because Aquino has attested to the documents' authenticity and compliance with the Treaty; and further because hearsay evidence is admissible during extradition proceedings, Aquino's objection is overruled.

(b). Objection # 2

The next objection Aquino raised at his extradition hearing was that the Government failed to provide him with the most recent charging Information in its extradition package and thus, the Government has violated the Treaty. Extradition Hr'g Tr. 12:16-25, November 23, 2009. The Government responded by explaining that Aquino need not be provided the most current charging document. Id. at 14:3-6. Rather, the Government asserted that Aquino need only be presented with the charging document which sets forth the defendant's pending charges. Id. at 13:20-25, 14:1. That said, the Government further explained that to the best of its knowledge Aquino's charges have not changed. Id.

Aquino is correct in that Annex*fn2 J is not a certified true copy of the Amended Information dated May 15, 2006. Annex J is an additional certified true copy of the September 17, 2001 Amended Information. However, a literal interpretation of Article 7 Section 3 (b) of the Treaty contradicts Aquino's argument. Article 7 Section 3 (b) states that "[i]n addition to the documents referred to in paragraph 2, a request for extradition.shall be accompanied by such evidence as.would provide probable cause for his arrest and committal.and a copy of the charging document."

"Extradition treaties must be construed liberally to achieve their purpose of providing for the surrender of fugitives to the requested countries." Lo Duca v. United States, 95-713 (DGT), 1995 WL 428636, at *6 (E.D.N.Y. 1995); accord In the Matter of the Extradition of Ribaudo, 00-1PG (KN), 2004 WL 213021 (S.D.N.Y. 2004). In construing such treaties, form is not to be insisted upon beyond the requirements of safety and justice. Lo Duca, 1995 WL 428636, at *6; cf., In re Neely, 103 F. 626, 630 (C.C.N.Y. 1900) (holding technical objections as to form are not to be given much consideration if the certificates, signatures, etc., are in substantial conformity to the requirements of the statute, thus providing reasonable assurance of authenticity); see, also, In re David, 395 F. Supp. 803, 805 (E.D. Ill. 1975) (holding mere oversights such as a clerical error shall not affect the validity of the certification, if the certification substantially conforms to the provisions of the statute).

In liberally construing this section of the Treaty, the Court fails to find qualifying words which would support Aquino's argument. The Treaty does not state that the most current or the operative charging document must be provided to the defendant. Rather, this section merely states that a copy of the charging document must be provided. This Court takes this phrase to literally mean the document which puts the defendant on notice with the charge he stands to face in the wanting jurisdiction.

The Court finds Lo Duca , Ribaudo , Neely , and David persuasive and a contrary view would likely put form over substance. As previously mentioned, it is uncontroverted that the Government's extradition package complies with the Treaty between the United States and the Republic of the Philippines. Furthermore, upon reviewing all of the submissions within the Government's extradition package, Annex J is the only erroneous document found. In light of the fact that this case has spanned many years and there are thousands of documents-including several Amended Informations-which make up the bulk of this case, it is plausible that this was no more than a minor error in assembling the extradition packet. Thus, this Court does not believe that the Republic of the Philippines deliberately withheld the May 15, 2006 Amended Information from Aquino.

Furthermore, this Court deems this objection to be technical rather than substantive. Aquino is not asserting that he is not aware of the charges against him--the crux of the statute's requirements. Rather, he is merely stating that he does not have the most up-to-date charging document in his hands, a technicality that neither appears deliberate nor critical to the resolution of this matter. Finally, it is important to note that subsequent to Aquino's extradition hearing the Government went through the necessary diplomatic channels and provided Aquino with the most recent charging document, demonstrating that Aquino's charges have remain unchanged.*fn3

All of the documents submitted in support of the extradition request conformed to the requirements of Article 7 of the Treaty. Moreover, Aquino's objection with regard to the most up-to-date Amended Information does not undermine the authenticity or reliability of the Government's request. To deny extradition or to determine that a treaty has not been complied with based on a ministerial error--which has been corrected--would be to turn justice on its head and perhaps could open the door to merit less objections. This Court will not engage in such a practice because it would shift the Court's primary purpose, which is to determine whether the Government has met its burden in establishing probable cause. Therefore, this Court need go no further in overruling Aquino's second objection.

(c). Objection # 3

Aquino next objected to the Government entering its third exhibit into evidence on two grounds, which were (1) that Brady evidence is required under these circumstances and (2) that according to Article 8 of the Treaty, Aquino is entitled to having all documents translated into English. Extradition Hr'g Tr. 26:1-10, November 23, 2009. Since the Court did not utilize any information in ...


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