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IN RE MONTIEL GARCIA

July 30, 1992

IN THE MATTER OF THE EXTRADITION OF DAVID MONTIEL GARCIA, also known as "David Montiel"


The opinion of the court was delivered by: REENA RAGGI

MEMORANDUM and ORDER

 RAGGI, District Judge:

 The United States, on behalf of the government of Mexico, seeks the extradition of David Montiel Garcia ("Montiel") to answer charges of indecently assaulting and corrupting a minor in violation of Articles 234 and 179 of the Mexican Penal Code. *fn1" Montiel concedes this court's personal jurisdiction over him, as well as its authority to order his extradition. He concedes that the extradition Treaty at issue is currently in full force and effect and that it covers the two crimes for which extradition is sought. Finally, he concedes that probable cause to believe he committed the crimes is supported by competent evidence. His single challenge to extradition is double jeopardy and relies on Article 6 of the Treaty, which states:

 Extradition shall not be granted when the person sought has been prosecuted or has been tried and convicted or acquitted by the requested Party for the offense for which extradition is requested.

 Montiel contends that this section mandates dismissal of these proceedings because he has already been prosecuted in the United States for transporting sexually explicit photographs of a minor, in violation of 18 U.S.C. § 2252(a)(1). This crime, he claims, was part of the same transaction as the crimes for which Mexico seeks his extradition.

 Factual Background

 In the summer of 1990, David Montiel Garcia, a Mexican national with resident status in the United States, travelled to Mexico because of his father's death in that country. While there, he took his cousin's 7-year old daughter out to lunch. Montiel began to tell the child a story, which he promised to finish at his deceased father's apartment. In the apartment, the child spilled soda on her dress. Montiel gave her a tee-shirt to change into, telling her to remove her panties as well because they were going to play a game of "kitty cat" and take photographs. After taking some pictures of the child as she lay on the bed, Montiel instructed her to lean over. When she did so, he took another photograph of her exposed genitals. In a statement to Mexican authorities, the child explained that she then "felt something hard like a 'hot dog' and that it hurt . . . very much . . ." Only when Montiel moved away from her did the pain stop. With the promise of buying her a present, Montiel then persuaded the unclad child to sit on his stomach.

 In September 1990 Montiel returned to the United States, with the film of the pictures he had taken of the child in Mexico still in his camera. When, in November 1990, he sought to have the film developed at a commercial laboratory, the proprietor notified the police of the lascivious content. Interviewed by local authorities in December 1990, Montiel made various statements incriminating himself in the taking and unlawful international transportation of these photographs. He denied, however, having any sexual contact with the child.

 On April 15, 1991, Montiel was indicted by a federal grand jury sitting in this district for violating 18 U.S.C. § 2252(a)(1). *fn2" United States v. Montiel, 91 CR 367. In the ensuing months, Montiel and the government engaged in plea negotiations, representing to the court that the case presented complex issues that precluded a speedy trial. Montiel submits that, in the course of these discussions, the prosecution indicated that if he did not plead guilty to the § 2252(a)(1) charge, it would seek to supersede the indictment to allege violation of 18 U.S.C. § 2251(a). *fn3"

 In September 1991, the United States Attorney for the Eastern District of New York learned that the government of Mexico was seeking Montiel's extradition to the State of Morelos, where a warrant had been issued in June 1991 for his arrest on charges of sexually assaulting his cousin's child. The government disclosed this development to the court and defendant on September 13, 1991, at which time Montiel was provisionally arrested on the Mexican charges.

 From late July until early September 1990, I was in Cuernavaca, Mexico. One afternoon in late July, I was with my cousin's daughter . . . . On that occasion, I touched her genitals and also took a photograph of them. In September 1990, I flew back to the United States. I brought the camera containing the negative back into the United States on my return flight.

 The government objected to that part of Montiel's statement admitting to touching the child's genitals as an attempt to make a record to oppose extradition on double jeopardy grounds. This court, without addressing the double jeopardy question, accepted the guilty plea, finding the disputed statement unnecessary to making out the elements of the § 2252(a) crime. From its questioning of Montiel and from its own review of the photograph central to the charge, the court found (1) that Montiel had knowingly and willfully transported a photograph in interstate commerce; (2) that at the time of said transportation he knew the photograph depicted the genitals and pubic area of a minor; and (3) that a reasonable person objectively viewing the photograph would find it to come within that subsection of sexually explicit conduct defined in 18 U.S.C. § 2256 as the "lascivious ...


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