The opinion of the court was delivered by: Gold, S., U.S.M.J.
Petitioner, United States of America, acting on behalf of the government of the Dominican Republic, has requested the extradition to the Dominican Republic of Jeffry Alejandro Pena-Bencosme, a citizen of the United States, ("Pena-Bencosme" or "defendant"). This request is made pursuant to 18 U.S.C. § 3184 and the Extradition Treaty Between the United States and the Dominican Republic (the "Treaty") of June 19, 1909. See Complaint and Affidavit in Support of Application for an Arrest Warrant ("Compl.") Ex. A, Docket Entry 1. Pena-Bencosme is wanted in the Dominican Republic on homicide charges for the shooting death of a police officer, Santiago Fortuna Sanchez.*fn1 Defendant opposes extradition, arguing a lack of probable cause to find that he committed the crime, and in particular contending that his actions were taken in self-defense. Defendant argues in the alternative against extradition on the ground that he fears for his safety if returned to the Dominican Republic. Defendant's Memorandum in Opposition to the Government's Request for Extradition to the Dominican Republic ("Def. Mem."), Docket Entry 10.
The Treaty provides for extradition upon a showing that the requested individual has been charged with or convicted of one of several enumerated extraditable offenses, including murder and voluntary manslaughter, and that the court finds probable cause to support the charge. Compl. Ex. A, Arts. I, II. The defense raises no arguments concerning any technical defects related to the extradition request. See Def. Mem. The only issues to be decided, then, are whether the government of the Dominican Republic has presented sufficient evidence for a finding of probable cause, and whether defendant's concerns for his safety in the Dominican Republic are cognizable before this Court.
I held a hearing to consider whether the evidence presented by the Government of the Dominican Republic is sufficient to support extradition on September 14, 2006. For the reasons stated below, I conclude that the government's evidence establishes probable cause and that extradition is warranted.
Defendant Pena-Bencosme was arrested pursuant to a warrant issued on December 7, 2005 and first appeared before the court on February 7, 2006. Docket Entries 2, 3. During a status conference held on March 1, 2006, Pena-Bencosme declined to waive extradition and sought a hearing, which was set for April 4, 2006. Subsequently, the defendant requested additional time and the hearing was adjourned to May 9, 2006. By letter dated May 4, 2006, Pena-Bencosme requested another adjournment to arrange for witnesses to come from the Dominican Republic to testify on his behalf at the hearing. I granted defendant's application and adjourned the hearing to June 21, 2006.
At the June 21, 2006 court appearance, Pena-Bencosme requested an additional three months to secure his witnesses. During this conference, I expressed concern over the length of time Pena-Bencosme was being held in custody and emphasized the limited scope of the evidence properly considered at an extradition hearing. Transcript of Status Conference of June 21, 2006 ("Status. Conf. Tr.") 3-6, Docket Entry 13. The defendant responded that he intended to present "a wide-ranging grouping" of witnesses, including those whose statements had been submitted by the government, "who would clarify their statements, explain why they're completely distorted," and pressed his request for a lengthy adjournment. Id. at 7.
At the status conference on June 21, 2006, I also highlighted my concerns about the government's failure to produce underlying documents referred to in its submission. In particular, I noted that the government's evidence refers to a confession by the defendant but that the actual confession was not provided. Id. at 11. See also Government Exhibit ("Gov't Ex.") A at 10.*fn2 Second, I noted that there was no information regarding the victim's weapon, and in particular, as some witnesses had reported, whether the magazine had been taken out of the gun, whether there was a bullet in the chamber, whether the gun had been fired, or where the gun was recovered. Status Conf. Tr. at 11. Lastly, I noted the absence of statements by the defendant's friends who were with him at the time of the incident. Id.
The extradition hearing was held on September 14, 2006. The government introduced the certified documents submitted by the Dominican Republic in support of its request for extradition as Exhibits A, B, and C. Despite the extensive adjournments requested by PenaBencosme and the anticipated "wide-ranging grouping" of witnesses, the defendant's case included only the testimony of two individuals and some documents. After the hearing, the defendant submitted additional documents. Defendant's Exhibits ("Def. Ex."), submitted by cover letter dated Sept. 29, 2006, Docket Entry 17 (Exhibits in hard copy only). Finally, on October 6, 2006, both sides presented their closing arguments in writing. Docket Entries 18, 19.
II. Scope of Extradition Hearing
The scope of an extradition hearing is narrow and rests within the sound discretion of the presiding judge, who must ensure that the hearing is not converted into a "dress rehearsal trial." Jhirad v. Ferrandina, 536 F.2d 478, 484 (2d Cir. 1976). See also Charlton v. Kelly, 229 U.S. 447, 461, 33 S.Ct. 945, 949 (1913). The limited purpose of an extradition hearing is to determine whether the requesting country has presented sufficient evidence to warrant a finding of probable cause to believe that the requested individual has committed the offense charged. See Charlton, 229 U.S. at 449, 33 S.Ct. at 946-47. "An extradition hearing is not the occasion for an adjudication of guilt or innocence." Melia v. U.S., 667 F.2d 300, 302 (2d Cir. 1981).
The rules of evidence that apply at trial are not applicable in extradition proceedings. Hearsay statements of witnesses summarized in the affidavit of a foreign official are admissible and may be sufficient to warrant a finding of probable cause.*fn3 See Simmons v. Braun, 627 F.2d 635, 636 (2d Cir. 1980); Afanasjev v. Hurlburt, 418 F.3d 1159, 1162 (11th Cir. 2005) (affirming probable cause finding based on unsworn indictment summarizing witness statements); Bovio v. U.S., 989 F.2d 255, 259-61 (7th Cir. 1993) (affirming probable cause finding based on investigator's affidavit); Emami v. U.S. Dist. Ct. for the Northern Dist. of Cal., 834 F.2d 1444, 1448 (9th Cir. 1987) (affirming probable cause finding to extradite for insurance fraud based on prosecutor's sworn affidavit); In re Ryan, 360 F. Supp. 270, 273 (E.D.N.Y. 1973) ("A determination of probable cause in an extradition proceeding may rest entirely upon hearsay.") (citation omitted). Indeed, the Supreme Court has recognized that a court may order extradition based upon "unsworn statements of absent witnesses." Collins v. Loisel, 259 U.S. 309, 317, 42 S.Ct. 469, 472 (1922). Nonetheless, a court must conduct an independent assessment of the evidence and closely examine the requesting country's submissions to ensure that any hearsay bears sufficient indicia of reliability to establish probable cause. Gill v. Imundi, 747 F. Supp. 1028, 1041 (S.D.N.Y. 1990) (recognizing that an extradition court has the "authority and discretion to go beyond the face of the government's affidavits for purposes of determining credibility or reliability"). See also In re Extradition of Singh, 170 F. Supp. 2d 982, 1023 (E.D. Cal. 2001) ("[T]he extradition judge makes credibility determinations as to the competence of the evidence supporting probable cause."); U.S. v. Fernandez-Morris, 99 F. Supp. 2d 1358, 1366 n.7 (S.D. Fla. 1999) ("Where a request for extradition is supported by an affidavit, recital of sufficient underlying facts is necessary if a magistrate judge is going to perform his judicial functions and not act merely as a rubber stamp.") (citation omitted).
A defendant's right to proffer evidence opposing extradition is extremely limited. Generally, an accused confronting extradition has no right to introduce evidence which merely contradicts the demanding country's proof, or which only poses conflicts of credibility. On the other hand, the accused has the right to introduce evidence which is 'explanatory' of the demanding country's proof.
Extradition of Sindona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978).*fn4 Admissible, explanatory evidence is limited to "reasonably clear-cut proof . . . of limited scope" with a "reasonable chance" of obliterating or negating the government's probable cause showing. Id. at 685. In contrast, evidence of an affirmative defense to the crime, such as the defense of justification, is considered contradictory evidence and is beyond the scope of an extradition hearing. See Charlton, 229 U.S. at 462, 33 S.Ct. at 950 (affirming exclusion of evidence of insanity defense); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973) ("[E]vidence of . . . facts contradicting the demanding country's proof or of a defense . . . may be properly excluded. . . .") (emphasis added); In re Extradition of Ramos Herrera, 268 F. Supp. 2d 688, 697 (W.D. Tex. 2003) (refusing to consider defendant's testimony concerning an affirmative defense to a shooting); In re Extradition of Powell, 4 F. Supp. 2d 945, 958-60 (S.D. Cal. 1998) (denying defendant's request to present evidence of a duress defense); In re Ezeta, 62 F. 972, 986 (N.D. Cal. 1894) ("[The defendant's] justification -- that he was merely acting in obedience to the orders of his superior officers . . . -- cannot here be considered. What that defense would amount to upon the trial of the case in Salvador cannot now be determined. . . . The fact that he fired the shots in defense of himself. . . is obviously a matter of defense to be presented [at a trial in the foreign country] . . ., where all the witnesses of the affair may be secured.").
The parties agree that, at approximately midnight on October 24, 2004, Pena-Bencosme and his friends arrived at the Daiqui Loco, a bar in Santiago, Dominican Republic.*fn5 PenaBencosme got out of his car and urinated in the street. Fortuna Sanchez and his wife had arrived at the Daiqui Loco a short while earlier. Fortuna Sanchez, who was not in uniform or on duty, was angered by Pena-Bencosme's conduct and verbally confronted him. Bystanders intervened and restrained Fortuna Sanchez. Pena-Bencosme returned to his vehicle. Moments later, Fortuna Sanchez ...