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United States District Court, Southern District of New York

March 25, 2003


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge


I. Introduction

In this habeas proceeding pursuant to 28 U.S.C. § 2241, petitioner Jose Angel Orellana ("Orellana") seeks to avoid extradition to Mexico, where he stands charged with the murder of his wife, Janeth Xiomara Hernandez Sevilla ("Hernandez") in 1997.*fn1 On March 15, 2001, following a hearing, Magistrate Judge Ellis signed a Certificate of Extraditability and Order of Commitment. Due to the somewhat convoluted factual and procedural history detailed below, I am the third Magistrate Judge to address the merits of Orellana's extraditability, and at least the fifth magistrate judge to play a role in the proceedings against him. As set forth below, I agree with Magistrate Judges Ellis and Fox that this Court has jurisdiction to act, that Orellana has been charged in Mexico with an extraditable offense, and that there is probable cause to believe that he committed the crime charged. I further agree with Judge Ellis that Mexico's request for extradition is supported by an adequate show ing of probable cause. I therefore recommend that Orellana's application for a writ of habeas corpus be denied, and that he be returned to Mexico to stand trial.

II. Undisputed Facts

The following facts, unless otherwise noted, are undisputed.

Orellana is a citizen of Honduras and is a lawful permanent resident of the United States. (See Affirmation of Jose Angel Orellana, dated Dec. 4, 2000 ("Orellana Affirm."), ¶¶ 3, 4). Prior to his arrest, Orellana w as living in the Bronx. (Id. ¶ 4).

According to the extradition request, Orellana was in Mexico during August 1997. (Orellana Mem. Ex. A ("Extrad. Req.") at 43). Prior to Orellana's arrival in Mexico, his wife, w ho lived in Mexico, had been dating another man. (Id. at 43,48).

On August 12, 1997, Hernandez's cousin, Janeth Susana Deras Sevilla ("Deras") was at her house in Mexico, which was next door to the house where Hernandez and Orellana were staying. (Id. at 41). Also present at Deras' house were Orellana, Hernandez, Jose Luis Ornelas Romero ("Ornelas") and Ornelas' common-law wife Esther Montalvo Crespo ("Montalvo"). (Id. at 41). During the afternoon, Deras, Ornelas, and Montalvo departed, leaving Orellana alone with Hernandez in Deras' house. (Id.).

Deras returned to her home several hours later and noticed that the door to Hernandez's house was closed. (Id.). Deras later entered Hernandez's house, but she did not see Hernandez or Orellana there. (Id.).

The following day, Deras went to Hernandez's home with Ornelas and Montalvo. (Id.). Ornelas then went inside where he discovered Hernandez's corpse. (Id. at 42). The coroner opined that the cause of Hernandez's death was asphyxia by smothering/strangulation. (Id. at 43-44).

Nearly two years later, on July 21, 1999, at approximately 8 p.m., New York City police detectives arrested Orellana in the Bronx. (Orellana Affirm. ¶ 5; Gov't Mem. Ex. C (Affirmation of Steven Kobre, dated Feb. 22, 2000 ("Kobre Affirm."), ¶ 2(b)). Although Orellana was a suspect in his wife's death, a warrant for his arrest had not yet been issued in Mexico. (Kobre Affirm. ¶ 2(c)). The United States Attorney's Office contends that the Police Department mistakenly believed that such a warrant existed, (id.), but none of the arresting officers has testified to that effect in connection with any of the proceedings in federal court.

The following day, after Orellana was advised of his Miranda rights, he made two statements implicating himself in the homicide. (See Orellana Affirm. ¶¶ 15, 16). The first statement was written and given to the police at approximately 10:30 a.m. (Kobre Affirm. ¶ 2(e); Gov't Mem. Ex. D). This statement includes a Spanish "Aviso Miranda." (Id.). The second statement, which was videotaped, was given to an Assistant District Attorney at approximately 8 p.m.*fn2 In both statements, Orellana indicated, in substance, that he choked his wife after she insulted him and subsequently left her residence believing that she was dead. (See Gov't Mem. Ex. D; Extrad. Req. at 45-46). Later the same day, he drove to Guatemala with several other men. (Id.).

Orellana contends that both his confessions are untrue, but were given because the police falsely told him that he would be returned to Mexico if he failed to confess, but would be permitted to remain in the United States if he admitted his culpability. (Orellana Affirm. ¶¶ 13-14). He further contends that the police officers ignored his requests to communicate with a lawyer and his family and friends, and failed to advise him of his right to contact the Honduran consulate before being interviewed. (Id. ¶¶ 8-11). In his affirmation, Orellana also renounces his earlier confessions, stating, "I did not kill my wife and I am completely innocent of any involvement in her death." (Id. ¶ 17).

After making his statements to the authorities, Orellana was held at a Bronx police station for an additional six days without being presented before a judicial officer. (See Kobre Affirm. ¶ 2(g)). On July 28, 1999, Orellana was turned over to Immigration and Naturalization Service ("INS") agents following the issuance of a warrant by Magistrate Judge Katz, upon a criminal complaint which charged Orellana with the misdemeanor of not having a certificate of alien registration or an alien registration receipt card in his possession at the time of his arrest. (See id. ¶ 2(k); 8 U.S.C. § 1304). This charge was dismissed the following day when Orellana's alien registration receipt card was surrendered to the authorities, but the INS continued to detain Orellana on administrative charges arising out of his allegedly unsanctioned return from Guatemala to the United States following the alleged commission of the homicide. (See Kobre Affirm. ¶ 2(m)). The immigration charges were based upon the statements that Orellana gave to the police on July 22, 1999. (Id.).

On August 4, 1999, the First Judge of Criminal Matters for the Judicial District of Soconusco, Chiapas, Mexico, signed a warrant calling for Orellana's arrest "for the crime of Homicide committed in the harm of [Hernandez]." (Extrad. Req. at 59). Thereafter, on August 13, 1999, Magistrate Judge Pitman signed a warrant calling for Orellana's arrest pursuant to Mexico's provisional request for his extradition and 18 U.S.C. § 3184. (Kobre Affirm. ¶ 2(o)). Orellana was removed from the custody of the INS to the custody of the Marshal's Service on August 16, 1999. (Id. ¶ 2(p)). At a proceeding later that day before Magistrate Judge Fox, Orellana consented to detention. (Id.).

The Mexican government's formal request for extradition was submitted to the United States on October 12, 1999. (Id. ¶ 3). Thereafter, Orellana moved to dismiss the Mexican request to extradite him to Mexico on several grounds, including a contention that the provisional arrest warrant was issued on less than probable cause. See In re Extradition of Orellana, 2000 W L 1036074 ("Orellana I"), at *1 (S.D.N.Y. July 26, 2000). Judge Fox heard oral argument on May 15 and issued a Memorandum and Order on July 26, 2000. Id. at *4. In his eighteen-page decision, Judge Fox rejected most of Orellana's claims, but found that the complaint in support of the issuance of the provisional arrest warrant was defective because the Assistant United States Attorney who was the complainant made statements on information and belief without setting forth the source of his information and grounds for his belief. Id. at *8-*9. Judge Fox therefore ordered Orellana released from custody. Id. at *10.

That same day, the United States commenced a new extradition proceeding against Orellana by filing a "Complaint for Arrest with the View Towards Extradition."*fn3 Judge Mukasey directed that Orellana be arrested on this complaint, and the matter was then assigned to Magistrate Judge Ellis by Judge Baer. See In re Extradition of Orellana, 2001 W L 266073 ("Orellana III"), at *2 (S.D.N.Y. Mar. 15, 2001).

On October 11, 2000, the United States asked Judge Ellis to issue a certificate of extraditability. Id. In response, by memorandum dated December 6, 2000, Orellana urged the Court to suppress his statements to the police, without which, he argued, there was no probable clause for his arrest. Id. The Government filed its responsive memo later that month. Id.

On January 29, 2001, Judge Ellis found the elements necessary for extradition had been met, that there was no basis for suppressing Orellana's statements, and that the Government was entitled to a certificate of extraditability. See In re Extradition of Orellana, 2001 W L 83231 ("Orellana II") (S.D.N.Y. Jan. 31, 2001). Several days later, however, because 18 U.S.C. § 3184 refers to a certification made following a "hearing," the United States, "in an abundance of caution," asked Judge Ellis to hold a hearing. (See Gov't Mem. Ex. F (letter dated Feb. 2, 2001 from Assistant United States Attorneys Kobre and Bansal to Judge Ellis)).

The extradition hearing was held on March 1, 2001. (Id. Ex. A (transcript)). At the hearing, the Court formally received the following previously-filed exhibits:

1. Government Exhibit One, containing: an authenticating certificate submitted by Jeffrey Davidow, the Ambassador of the United States of America to Mexico when the documents were submitted by Mexico; the formal request for extradition submitted by the government of Mexico, with certified English translation; documents submitted in support of the formal request for extradition, with certified English translation; a videotape of Orellana's confession before an Assistant District Attorney; and a copy of the Extradition Treaty.
2. Government Exhibit Two: The declaration of Richard C. Visek of the United States Department of State;
3. Government Exhibit Three: Orellana's videotaped confession; and 7
4. Government Exhibit Four: Orellana's written confession.

Orellana III, 2001 WL 266073, at *2. Judge Ellis later observed that, at the hearing, "Orellana did not challenge the admissibility of any of the Government's exhibits on the basis of authenticity; rather, Orellana challenged the admissibility of those portions of the exhibits that referred to his two confessions, on the grounds that the confessions were acquired in violation of his Fourth and Fifth Amendment rights." Id. at *3.

Following the hearing, Judge Ellis declined to suppress Orellana's written and videotaped confessions because "the exclusionary rule . . . does not apply to extradition proceedings." Id. at *7. He also observed that Orellana's videotaped confession did not appear to be coerced, was corroborated by Orellana's written statement, and was not undercut by his subsequent recantation, which Judge Ellis found "defies common sense and is riddled with inconsistencies." Id. at *5-*6. Judge Ellis therefore again ordered Orellana's extradition. Id. at *6.

III. Discussion

A. Scope of Review

A fugitive may not appeal from the grant of a certificate of extraditability. Collins v. Miller, 252 U.S. 364, 369-70, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920); Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990). Accordingly, a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the only means by which an extraditee may obtain further judicial review of an extradition order. Murphy v. United States, 199 F.3d 599, 601 n. 1 (2d Cir. 1999); Spatola v. United States, 925 F.2d 615, 617 (2d Cir. 1991).

In the extradition context, however,

habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe he accused guilty.
Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925) (emphasis added).

B. Orellana's Claim

In his petition, Orellana does not contest Judge Ellis's jurisdiction or that murder is a crime within the scope of the bilateral extradition treaty between Mexico and the United States. Orellana further concedes that probable cause for his arrest and extradition exists if his confessions are admissible and his retraction is not given "due weight." (Orellana Mem. at 14). Orellana argues, however, that his confessions must be excluded because they were obtained following an egregiously unlawful arrest, were the product of police coercion that overbore his will, and are unreliable in light of the circumstances under which they were made and his subsequent recantation. (Id. at 15-34). Thus, after more than two years of litigation, the sole issues requiring discussion in order to resolve Orellana's habeas petition are the admissibility of, and weight to be accorded to, Orellana's confessions.

C. Applicability of the Exclusionary Rule

Orellana's contends that his videotaped statement was the product of an unlawful arrest and, therefore, must be suppressed as fruit of the poisonous tree. (See Orellana Mem. at 16-17 (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 441 (1963)). Orellana recognizes that extradition is a civil, rather than criminal, proceeding, but argues that similar policy concerns should lead the Court to exclude Orellana's confessions.

This attempt to incorporate the exclusionary rule into an extradition proceeding is plainly foreclosed by the Second Circuit's decision in Simmons v. Braun, 627 F.2d 635 (2d Cir. 1980). There, federal agents learned that the petitioner was wanted in Canada following his arrest on a stolen property charge which ultimately was not pursued. The petitioner contended that the determination that he was a fugitive from prosecution on the Canadian charge was the product of an unlawful search and seizure and, on that basis, sought the issuance of a habeas writ precluding his return to Canada.

Rejecting this claim, the Second Circuit observed that the limited purpose of an extradition hearing is to determine whether the evidence warrants the fugitive's removal under the applicable treaty. Id. The court held that the exclusionary rule was incompatible with this limited role, noting that it was "not applicable to all stages of even domestic law enforcement . . . and is primarily justified w here exclusion of illegally obtained evidence will serve to deter Fourth Amendment violations." Id. at 636-37 (citation and parenthetical omitted). The court concluded that the goal of deterring wrongful police conduct would not be served by excluding evidence in an extradition proceeding because "it is totally unrealistic to think that agents will unlawfully arrest people on the off chance that they may be wanted by a foreign government." Id. at 637; see also Extradition of Powell, 4 F. Supp.2d 945, 954 (S.D.Cal. 1998) (declining to apply the exclusionary rule and Miranda to suppress inculpatory statements by a fugitive wanted in Mexico on a murder charge).

Orellana seeks to distinguish Simmons on two grounds, neither of which has any merit. First, Orellana contends that Simmons is inapplicable to the facts of this case because the petitioner there sought to suppress evidence of his identity. (See Orellana Mem. at 19 (citing Gersten v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 866, 43 L.Ed.2d 54 (1975), and Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-12, 96 L.Ed. 541 (1952)). While it is true that evidence of identity "is never itself suppressible as a fruit of an unlawful arrest or search," INS v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984), the Second Circuit never indicated in Simmons that it was relying on this narrow ground. Instead, the court framed the question considerably more broadly as one involving the "[a]pplication of the exclusionary rule." Simmons, 627 F.2d at 637. Accordingly, even if Orellana were able to establish that Simmons is dicta insofar as it addresses the exclusion of statements made by a person wanted in another country, it unquestionably is persuasive dicta. Indeed, many courts have held that the exclusionary rule may not be employed to exclude statements from consideration in an extradition proceeding. See Powell, 4 F. Supp.2d at 950-51, 954.

Orellana's second argument is that Simmons is not controlling here because the Second Circuit failed to engage in the sort of cost-benefit analysis that the Supreme Court later utilized in connection with deportation proceedings in INS v. Lopez-Mendoza. (Orellana Mem. at 20). In that case, the Supreme Court considered the habeas petitions of two aliens w ho sought to overturn orders of deportation on the basis of the exclusionary rule. The Court summarily reversed the Ninth Circuit's vacatur of one alien's deportation order because his statement related solely to his identity. Lopez-Mendoza, 468 U.S. at 1039, 104 S.Ct. at 3483. With respect to the second alien, however, the Court weighed "the likely social benefits of excluding unlawfully seized evidence against the likely costs," concluding that this balancing augured against the application of the exclusionary rule to deportation proceedings. Id. at 1041-42, 104 S.Ct. at 3484-85. In a portion of Lopez-Mendoza reflecting only a plurality view, Justice O'Connor further intimated that a different result might obtain in situations involving "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." Id. at 1050-51, 104 S.Ct. at 3489.

As the Government correctly observes, it does not appear that any court has applied the cost-benefit analysis of Lopez-Mendoza in the context of an extradition proceeding. (See Gov't Mem. at 26-27). Cf. In re Extradition of Atta, 706 F. Supp. 1032, 1038 n. 4 (E.D.N.Y. 1989) (noting that "[t]he process afforded in a deportation hearing is as limited, if not more so, than that afforded in an extradition proceeding"). Moreover, even if such balancing were appropriate, the cost of extending the exclusionary rule to extradition proceedings clearly would far outweigh the benefits. Because the process is governed by international treaties, any attempt to engraft judicially-imposed requirements from our own criminal law on extradition requests obviously could have a detrimental effect on our relationships with other countries. Additionally, if the exclusion of evidence led to the conclusion that there was no probable cause to believe that a crime was committed in the requesting state, the United States might find itself in the untenable position of harboring a fugitive whom it had no particular interest in retaining within its borders and who might, in fact, be guilty of the crime charged. When a crime occurs in the United States, it is an established principle of our criminal jurisprudence that, in Justice Cardozo's words, the criminal may sometimes have to "go free because the constable has blundered." See People v. DeFore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926). This is a price that our society is prepared to pay to ensure that our law enforcement officials do not overstep their bounds. Here, however, if Orellana's statements were to be suppressed, both the requesting state — Mexico — and the federal government would be punished for the alleged transgressions of local law enforcement authorities. Absent any evidence of collusion with the local officials — and here there is none — there is no reason why the exclusionary rule should be applied to the detriment of such interested but wholly nonculpable parties.

Although Judge Fox justifiably described the conduct of the police officers who held Orellana from July 21 to July 29, 1998 without proffering any charges as "outrageous," Orellana I, 2000 W L 1036074, at *5, the statements at issue here were secured within the first twenty-four hours after Orellana's arrest. Despite the shortcomings in the police officers' actions, or lack thereof, in the days that followed the taking of the two statements, there is no reason to believe that the videotaped confession, which forms part of the probable cause showing here, is unreliable. In fact, it is entirely consistent with Orellana's earlier written statement and the other evidence proffered by Mexico, including the coroner's report. Like Judges Ellis and Fox, I also have reviewed the videotape. While Orellana appears somewhat nervous during the interview, as one might expect of a husband admitting that he had murdered his wife, I conclude, as did Judges Fox and Ellis before me, that there is no reason to believe that Orellana's videotaped confession was coerced.

Finally, Orellana's subsequent written recantation is entitled to no weight whatsoever since the limited question before Judge Ellis was whether the Mexican government had adduced any evidence establishing probable cause to believe that Orellana killed Hernandez. See Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973) ("evidence of alibi or of facts contradicting the demanding country's proof . . . may properly be excluded from the Magistrate's hearing"). Here, the independent evidence show ing that Orellana was in Mexico with his wife shortly before her death, coupled with the coroner' reports and Orellana's admissions, plainly established probable cause to believe that Orellana was the person who killed her.

IV. Conclusion

The habeas petition should be dismissed so that Orellana may be returned to Mexico pursuant to the March 15, 2002 Certificate of Extraditability and Order of Commitment.

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