Avila-Ramos v. Kammerzell

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 28, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
MIRELLA IVONNE AVILA-RAMOS,
Petitioner - Appellant,
v. No. 17-1014
JOHN L. KAMMERZELL, United States
Marshal for the District of Colorado;
KENNETH DEAL, Acting United States
Marshal for the District of Colorado,
Respondents - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-01221-WJM-KLM)
_________________________________
Robert T. Fishman of Ridley, McGreevy & Winocur, P.C., Denver, Colorado, for
Petitioner-Appellant.
J. Bishop Grewell, Assistant United States Attorney (and Robert C. Troyer, United States
Attorney, on the brief), Denver, Colorado, for Respondents-Appellees.
_________________________________
Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
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KELLY, Circuit Judge.
_________________________________
Petitioner-Appellant Mirella Ivonne Avila-Ramos appeals from the district
court’s denial of habeas corpus relief from an extradition certification order. On
appeal, she challenges the magistrate judge’s and district court’s probable cause
rulings. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm
because the magistrate judge adequately found probable cause that Ms. Avila-Ramos
committed aggravated homicide, the crime identified in the extradition request.
Background
Ms. Avila-Ramos is wanted for aggravated homicide in Chihuahua, Mexico.
Supp. R. 26. According to the warrant for her arrest, Ms. Avila-Ramos plotted with
Arturo Heriberto Herrera Rey, her paramour, to murder her husband. Id. at 38. Ms.
Avila-Ramos’s husband, who had survived an earlier attempt on his life, was on his
way to a hospital appointment when he was attacked and killed by a hired gun. Id. at
31, 38. An investigation implicated Ms. Avila-Ramos and Mr. Rey in the hit, and
Mr. Rey was convicted of aggravated homicide for his involvement in the crime.
Def.’s Ex. B at 32, In re Extradition of Avila-Ramos, No. 1:15-mj-01087-NYW (D.
Colo. Oct. 7, 2015), ECF No. 178-1. Now, Mexico requests Ms. Avila-Ramos’s
extradition from the United States to face charges for her participation in the plot. 4
R. 20–21; Supp. R. 43.
After a hearing, a magistrate judge certified Ms. Avila-Ramos as extraditable.
In re Extradition of Avila-Ramos, No. 1:15-mj-01087-NYW (D. Colo. May 6, 2016),
ECF No. 181. Among the magistrate judge’s findings was that there was sufficient
evidence to establish probable cause that Ms. Avila-Ramos committed aggravated
homicide. Id. at 16. Ms. Avila-Ramos filed a petition for a writ of habeas corpus
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challenging the extradition certification order, 1 R. 8, which the district court denied,
Avila-Ramos v. Kammerzell, 228 F. Supp. 3d 1196, 1204 (D. Colo. 2017). In
upholding the magistrate judge’s probable cause determination, though, the district
court characterized Ms. Avila-Ramos’s offense as conspiring to murder her husband
(rather than as aggravated homicide). See id. at 1203.
On appeal, Ms. Avila-Ramos argues that (1) a finding of probable cause for
conspiring to commit murder does not subject her to extradition for aggravated
homicide, the offense identified in the extradition request, and (2) the magistrate
judge based her probable cause determination on inadequate evidence.
Discussion
Habeas review of a probable cause determination in an extradition proceeding
is limited to the narrow issue of “whether there was any evidence warranting the
finding that there was reasonable ground to believe the accused guilty.” Peters v.
Egnor, 888 F.2d 713, 717 (10th Cir. 1989) (quoting Fernandez v. Phillips, 268 U.S.
311, 312 (1925)). In other words, the petitioner’s appeal “must fail if there is ‘any
evidence of probable cause.’” Id. (quoting Theron v. U.S. Marshal, 832 F.2d 492,
501 (9th Cir. 1987), abrogated on other grounds by United States v. Wells, 519 U.S.
482 (1997)). On appeal, we “review the district court’s legal determinations de novo
and its findings of fact for clear error.” Smith v. United States, 82 F.3d 964, 965
(10th Cir. 1996). Here, where the district court made no additional factual findings
concerning probable cause, our review of the district court’s judgment is purely de
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novo. See Santos v. Thomas, 830 F.3d 987, 1001 (9th Cir. 2016) (“We review the
district court’s judgment de novo. In this context, that means that, with respect to the
extradition court, we stand in the same position as did the district court.” (citation
omitted)).
A. The Magistrate Judge Found Probable Cause for the Crime Identified in the
Extradition Request
Ms. Avila-Ramos first argues that she is not extraditable because probable
cause was not found for the crime identified in the extradition request. The
extradition request charges her with aggravated homicide, but she contends that
probable cause was found for conspiracy to commit murder, which allegedly
constituted an impermissible alteration of the charges underlying the extradition
request.
Ms. Avila-Ramos did not raise this argument in her habeas petition to the
district court, presumably because the magistrate judge did find probable cause that
Ms. Avila-Ramos committed aggravated homicide, the crime identified in the
extradition request. See In re Extradition of Avila-Ramos, slip op. at 19 (“This court
CERTIFIES to the United States Secretary of State that Respondent Mirella Ivonne
Avila Ramos is extraditable for the charged offense of aggravated homicide pursuant
to 18 U.S.C. § 3184 . . . .” (emphasis added)). The sole basis for her argument is that
the district court inexplicably characterized her offense as conspiring to murder her
husband, not as aggravated homicide. See Avila-Ramos, 228 F. Supp. 3d at 1197
(“The United Mexican States (‘Mexico’) accuse Petitioner Mirella Ivonne Avila-
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Ramos (‘Avila-Ramos’) of conspiring to have her husband murdered in Mexico.”
(emphasis added)); id. at 1203 (upholding the magistrate judge’s finding of probable
cause that Ms. Avila-Ramos committed the offense of “conspiring to murder her
husband” (emphasis added)).
Ms. Avila-Ramos is not entitled to relief, however, simply because the district
court mischaracterized the charge against her. The scope of our review is limited to
the sufficiency of the magistrate judge’s order, which we review without deference to
the district court’s legal determinations. See Santos, 830 F.3d at 1001; Smith, 82
F.3d at 965. As the magistrate judge unambiguously found probable cause for the
offense identified in the extradition request (aggravated homicide), the charges
contained in the extradition request have not been altered.1
B. The Magistrate Judge’s Probable Cause Determination Was Adequate
Next, Ms. Avila-Ramos contests the adequacy of the magistrate judge’s
probable cause determination. She argues that (1) although the government produced
evidence that she conspired to kill her husband, it did not produce any evidence that
1
Ms. Avila-Ramos also invokes the “rule of specialty,” stating that it “does
not allow for trial on” charges other than those identified in the extradition request.
Aplt. Br. at 10. The rule of specialty in the extradition treaty between the United
States and Mexico provides that “[a] person extradited under the present Treaty shall
not be detained, tried or punished in the territory of the requesting Party for an
offense other than that for which extradition has been granted.” Extradition Treaty
Between the United States of America and the United Mexican States art. 17, Mex.-
U.S., May 4, 1978, 31 U.S.T. 5059. Ms. Avila-Ramos has misapplied the rule, “as it
relates to prosecution rather than extradition.” Peters, 888 F.2d at 720 n.9. Whether
Ms. Avila-Ramos’s eventual prosecution violates the rule of specialty is for the
Mexican courts to address.
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she was directly responsible for her husband’s death and (2) the magistrate judge
relied on improper evidence, namely the criminal proceedings against Mr. Rey.
The first issue is whether, as a matter of law, the magistrate judge could have
found probable cause that Ms. Avila-Ramos committed aggravated homicide from
the evidence in the extradition request.2 Ms. Avila-Ramos argues that the evidence
supports, at most, a conspiracy to kill her husband, which is a distinct offense from
aggravated homicide. But Ms. Avila-Ramos ignores the fact that conspiring to
commit a crime is also a theory of liability for the substantive offense. See United
States v. Bowen, 527 F.3d 1065, 1077 & n.10 (10th Cir. 2008) (describing Pinkerton
coconspirator liability); see also United States v. Zackery, 494 F.3d 644, 649 (8th
Cir. 2007) (holding that a defendant does not need to be charged as a conspirator to
be convicted of a substantive offense based on Pinkerton coconspirator liability).
The same holds true for aiding and abetting the commission of a crime. See Bowen,
527 F.3d at 1077 & n.10; see also United States v. Day, 700 F.3d 713, 722 (4th Cir.
2012) (ruling that “aiding and abetting is a theory of liability, not a separate offense,”
and that the rule of specialty in the extradition treaty between the United States and
2
The extradition treaty between the United States and Mexico provides that
extradition may be granted only if, according to the laws of the requested country,
there would be sufficient evidence to bring the accused to trial if he or she had
committed the offense in the requested country. Extradition Treaty art. 3.
Accordingly, the relevant inquiry is whether there would be sufficient evidence under
U.S. law to bring Ms. Avila-Ramos to trial if she had committed the offense in the
United States, the requested country. See Eain v. Wilkes, 641 F.2d 504, 507–08 (7th
Cir. 1981) (concluding that nearly identical language in the extradition treaty
between the United States and Israel “require[d] a finding of probable cause under
federal law”).
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Mexico does not require the requesting state to specify a particular theory of
liability). As a result, the government did not need to produce evidence that Ms.
Avila-Ramos was directly responsible for her husband’s death; it could produce
evidence of coconspirator or aiding and abetting liability instead.
Here, either theory supports the magistrate judge’s probable cause
determination. The extradition request contains sworn statements from family
members, a private investigator, forensics experts, and Mexican law enforcement
officers, which together allege that Ms. Avila-Ramos (1) was having an affair with
Mr. Rey, who arranged the assassination; (2) paid the gunman by helping him
burglarize her husband’s house; and (3) reported her husband’s whereabouts to Mr.
Rey to facilitate the assassination. See 4 R. 20–27; Supp. R. 146–242, 253–61. In
short, the request alleges that Ms. Avila-Ramos was part of — and assisted in — an
agreement to kill her husband. Consequently, the evidence provides grounds to
believe that Ms. Avila-Ramos is liable for her husband’s death either as a
coconspirator or as an aider and abettor.
The second issue is whether the magistrate judge relied on improper evidence
when determining probable cause. When reviewing the sufficiency of evidence in an
extradition proceeding, a magistrate judge’s role 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.” Peters, 888 F.2d at 717(quoting Collins v. Loisel, 259 U.S. 309, 316 (1922)). Notably, the Federal Rules of
Evidence do not apply to extradition proceedings, Fed. R. Evid. 1101(d)(3), and 18
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U.S.C. § 3190 provides that properly authenticated depositions, warrants, or other
papers are admissible evidence. Ms. Avila-Ramos does not challenge the
authenticity of the documents in Mexico’s extradition request. She argues, however,
that the magistrate judge improperly relied on documents from Mr. Rey’s trial in
Mexico.
In Mr. Rey’s trial, the Mexican court found that Mr. Rey and Ms. Avila-Ramos
“undoubtedly” conspired to kill her husband. Def.’s Ex. B at 22–23. According to
the magistrate judge, this evidence was “the most persuasive support for the finding
of probable cause,” particularly because the trial was conducted in Spanish, thereby
addressing Ms. Avila-Ramos’s concerns about translation and reliability issues in the
extradition request’s documents. In re Extradition of Avila-Ramos, slip op. at 17.
Ms. Avila-Ramos likens this evidence to a conviction rendered in absentia and
contends that such a conviction should be treated merely as a charge, which does not
establish probable cause by itself. Her argument is unavailing, though, for two
reasons.
First, her analogy to an in absentia proceeding is inapt. A trial in absentia is a
trial held without the accused. Trial In Absentia, Black’s Law Dictionary (10th ed.
2014). Mr. Rey was present for his trial, and the Mexican court convicted him, not
Ms. Avila-Ramos. Therefore, the proceedings were not in absentia, and the policy
reasons for treating them as a charge (rather than as evidence) do not apply. Instead,
the proceedings are more accurately categorized as hearsay: they contain out-of-court
statements that are being offered for the truth therein, and Ms. Avila-Ramos did not
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have the opportunity to cross-examine the declarants. As the rule against hearsay
does not apply in extradition proceedings, see Fed. R. Evid. 1101(d)(3), the
magistrate judge could properly consider the criminal proceedings against Mr. Rey.
Second, Ms. Avila-Ramos’s appeal fails if there was any evidence of probable
cause, see Peters, 888 F.2d at 717, and the criminal proceedings against Mr. Rey
were not the only evidence that the magistrate judge considered. The magistrate
judge cited a variety of evidence from the extradition request, including (1) text
messages, (2) phone records, and (3) statements of a private investigator, a Mexican
law enforcement officer, and Mr. Rey. In re Extradition of Avila-Ramos, slip op. at
15–17. This evidence independently supported the magistrate judge’s probable cause
finding, and Ms. Avila-Ramos’s appeal consequently fails.
AFFIRMED.
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