The opinion of the court was delivered by: Gold, S., U.S.M.J.
By Memorandum & Order dated November 13, 2006 ("M&O"), Docket Entry 21, I granted the government's request for a certificate of extradition for Jeffry Alejandro PenaBencosme ("Pena-Bencosme" or "defendant"). Pena-Bencosme is charged in the Dominican Republic with voluntary homicide in relation to the shooting death of Santiago Fortuna Sanchez ("Fortuna Sanchez"), a Dominican police officer. Familiarity with my prior Memorandum and Order is presumed.
I granted Pena-Bencosme a stay of extradition on the condition that he file a petition for a writ of habeas corpus no later than December 15, 2006, which he did. During the course of the related habeas proceedings, In re Jeffry Alejandro Pena Bencosme, 06-CV-6745, the Honorable Nicholas G. Garaufis, the United States District Judge presiding over the habeas petition, allowed Pena-Bencosme to move to reopen the extradition proceeding before me.
In his letter application to reopen and for reconsideration, Pena-Bencosme asks me to consider "additional evidence bearing on the issue [of] whether the Dominican Republic deliberately tailored their submissions, particularly witness statements, to deceive and mislead the Court into falsely believing that the shooting of Santiago Fortuna Sanchez . . . was unprovoked and without justification." Pena-Bencosme Letter dated May 31, 2007 ("Reopen Letter") 1, Docket Entry 27. My finding of probable cause to support extradition relied heavily on the statements attributed by the Dominican prosecutor to three eyewitnesses to the shooting of Fortuna Sanchez. Pena-Bencosme now contends that these three witnesses did not make the incriminating statements the prosecutor says they did, and has submitted affidavits from each of them in support of his argument.
If in fact each of the government's eyewitnesses, other than the victim's wife, unequivocally denied having made the incriminating statements attributed to them by the Dominican government, I would have serious doubts about the reliability of the Dominican Republic's submissions in support of extradition and might vacate my finding of probable cause. See In re Extradition of Ben-Tov, No. 05-22201 at 18 (S.D. Fla. Feb. 22, 2006) (vacating the original certification for extradition after finding that there could be "no confidence in the reliability of the [foreign government's] submissions" based on defendant's new documentary evidence and affidavits). Accordingly, based on Pena-Bencosme's proffer and the affidavits he submitted, I granted his request to reopen the extradition proceedings.
On October 10, 2007, I held a hearing at which Pena-Bencosme presented the live testimony of two of the four witnesses relied on by the Dominican Republic in support of its showing of probable cause.*fn1 Contrary to Pena-Bencosme's assertions, the hearing revealed no basis to conclude that the Dominican prosecutor misrepresented the statements made by the witnesses to the shooting or otherwise misled this Court. Rather, as set forth in detail below, the Dominican Republic's submission in support of extradition was based on virtually verbatim recitations of the signed statements made by the witnesses to police investigators, and there is no evidence that those statements were coerced. Accordingly, and for the reasons discussed below, I do not find that the Dominican prosecutor deceived this Court or that probable cause has been "obliterated," and I accordingly decline to reconsider my decision certifying extradition. I also address below Pena-Bencosme's alternative argument that his extradition would violate the principle of dual criminality. Pena-Bencosme Letter dated Aug. 22, 2007, Docket Entry 37.
A. Statements by the Eyewitnesses
The Dominican Republic's extradition request was supported by the statements of four eyewitnesses: 1) Desiderio de Jesus Medina Santos, the owner of the bar where the shooting occurred, 2) Julio Rodriguez Urena, an off-duty police officer who was working security at the bar and who is alleged to have shot Pena-Bencosme while he was fleeing, 3) Josue Rumaldo Matera, a security guard at the bar, and 4) Reyna Maria Rosario, the victim's wife. These statements are set forth in detail in the M&O at 10-11. In short, the Dominican prosecutor represented that each of these witnesses made statements indicating that Pena-Bencosme was not acting in self-defense when he shot Fortuna Sanchez. Moreover, all of them, except for the victim's wife, noted that they observed Fortuna Sanchez remove the clip from his gun and put the clip in one holster and the gun in another before approaching Pena-Bencosme. These witnesses' statements were corroborated to some extent by ballistics evidence.
As noted above, Pena-Bencosme has submitted affidavits from Medina Santos, Rodriguez Urena, and Matera,*fn2 three of the four eyewitnesses. In these affidavits, discussed in greater detail below, one witness stated that there are inaccuracies in the Dominican prosecutor's summary of his statement and two provided accounts of the events very different from the ones attributed to them in the Dominican Republic's submission. Finally, at the hearing on defendant's motion to reopen, Matera and Rodriguez Urena testified about their statements to Dominican officials and the affidavits they signed at the request of Pena-Bencosme's attorneys. They also testified about what they observed on the night of the shooting. There are now three versions of what happened on October 24, 2004 by two of the witnesses and two versions by one witness. Each of the witnesses' statements is summarized below.
1. Desiderio de Jesus Medina Santos
According to the Dominican Republic's submission in support of extradition (hereinafter, "prosecution statement"), Medina Santos observed Pena-Bencosme shoot Fortuna Sanchez, "who could not have fired because his weapon was in one holster and the magazine was in another."*fn3
Then, in an affidavit submitted by Pena-Bencosme after the extradition hearing held in 2006 (hereinafter, "defense affidavit"),*fn4 Medina Santos stated "I have reviewed the summary of my statement as submitted to the United States Government by the Dominican authorities. There are a number of omissions and distortions that might mislead the reader." Medina Santos claimed in this affidavit that he told the Dominican authorities that Fortuna Sanchez was intoxicated at the time of the shooting and that Fortuna Sanchez "racked" his gun, i.e., placed a bullet in its chamber, before running over to Pena-Bencosme. In addition, he disavowed hearing PenaBencosme insult Fortuna Sanchez, which contradicts his ...