United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE.
November 16, 2018, the United States of America filed a
complaint for the extradition of Tito Jay Risner a/k/a Jay
Michael Risner a/k/a Tito Risner a/k/a Jay M. Risner a/k/a
Jose Tito Rodriguez Calderon ("Risner") at the
request of the Government of the Republic of Colombia
("Colombia") pursuant to the extradition treaty
between the United States and Colombia, the Extradition
Treaty with the Republic of Colombia, U.S.-Colom., Sept. 14,
1979, S. TREATYDOC. NO. 97-8 (1981) (the "Treaty"),
available at 1979 U.S.T. LEXIS 199. The United
States seeks Mr. Risner's extradition in accordance with
its treaty obligations to Colombia, see Dkt. No. 1,
and moved to detain Mr. Risner following his arrest on a
warrant [Dkt. No. 22] issued in connection with the United
States's complaint filed under 18 U.S.C. § 3184,
see Dkt. Nos. 5 & 14.
Risner, through his retained counsel, filed a Motion to
Dismiss, see Dkt. No. 23, asserting that, "[i]n
this extradition request, Colombia has failed to follow
extradition procedures and provide all required documents
pursuant to Article 9 of the Extradition Treaty with the
Republic of Colombia, U.S.-Colom., Sept. 14, 1979, S. TREATY
DOC. NO. 97-8 (1981) ('Treaty')," and that
"Colombia is in violation of the terms of the treaty,
therefore this matter must be dismissed," id.
United States then filed a Notice of Filing of Supplement to
Extradition Request, see Dkt. No. 26, in which it
On November 16, 2018, Tito Risner a/k/a Jay Risner a/k/a Jose
Tito Rodriguez Calderon ("Risner," "Rodriguez
Calderon," or the "fugitive") was arrested on
the basis of a complaint seeking his extradition to the
Republic of Colombia ("Colombia") to serve a
sentence for aggravated homicide. Attached to the filed
complaint was the original Extradition Request submitted by
the Government of Columbia (ECF No. 1-1).
On February 23, 2018, the United States sent a diplomatic
note to Columbia requesting that the Government of Columbia
submit a certified supplement to the original extradition
package from Columbia. In this diplomatic note, the United
States requested that Columbia submit a Supplement which
provides a text of the applicable Columbian laws describing
the essential elements and designation of the offenses for
which extradition is requested, and describing the time limit
on the prosecution of the execution of punishment for the
offenses as required by Articles 9(2) and 9(5) of the
Extradition Treaty between the United States and the Republic
Attached hereto as Exhibit A is the certified Supplement
(dated July 23, 2018) with Spanish and English translations
which was provided to the United States by the Government of
Columbia. This Supplement to the original Extradition Request
is admissible at the extradition hearing pursuant to 18
U.S.C. § 3190.
Id. at 1-2.
United States then filed the Government's Response in
Opposition to Fugitive's Motion to Dismiss Complaint,
see Dkt. No. 36, and a Notice of Filing
-Supplemental Document, see Dkt. No. 37, in which it
[a]ttached hereto is a diplomatic note from the Government of
Colombia, dated January 3, 2019, to the Government of the
United States, explaining that the fugitive's arrest in
the United States on November 16, 2018, interrupted the
Colombian limitations period, which otherwise was set to
expire on November 23, 2018.
Id. at 1 (footnote omitted). The United States also
noted that, "[i]n providing this information, neither
government concedes that the Treaty required the Government
of Colombia to submit it." Id. at 1 n.1.
Risner then filed his Relator's Reply to Government's
Response to Motion to Dismiss, see Dkt. No. 38, and
Supplement to Relator's Reply to Government's
Response to Motion to Dismiss, see Dkt. No. 42.
undersigned United States magistrate judge is authorized to
conduct the proceedings in this matter under 18 U.S.C. §
3184 and 28 U.S.C. § 636. See Noel v. U.S., 12
F.Supp.2d 1300, 1305 (M.D. Fla. 1998); see generally
Ntakirutimana v. Reno, 184 F.3d 419, 423 n.8 (5th Cir.
1999) ("The judicial officer, whether state or federal,
who is authorized to hold an extradition hearing pursuant to
the terms of 18 U.S.C. § 3184 is often referred to as a
'magistrate' or as the 'committing
Court denied Mr. Risner's Motion to Dismiss [Dkt. No.
23], see Dkt. No. 55, and, after pre-hearing
briefing, see Dkt. Nos. 62, 63, 66, 68, 69, 70,
& 71; see also Dkt. No. 75 (post-hearing
supplemental filing), held the extradition hearing under 18
U.S.C. § 3184 on July 31, 2019, see Dkt. Nos.
72, 74, & 75.
further background, the United States asserts that,
[a]ccording to information the Government of Colombia has
On December 9, 1994, the Colombian Criminal Court Six,
Circuit of Cartagena, found the fugitive guilty of the
aggravated homicide of his wife, Patricia Gomez de Risner
(the "victim" or "Risner's wife"), in
violation of Article 323 of Colombia's Criminal Code, and
sentenced him to twenty years imprisonment. The conviction
was affirmed on appeal, first by the Superior Tribunal of the
Judicial District of Cartagena on April 20, 1995, and then by
the Supreme Court of Justice, Criminal Cassation Division, on
November 23, 1998. The extradition request from the
Government of Colombia contains supporting documentation
including the aforementioned Colombian court decisions, which
reflect the following:
a. The victim was Risner's wife. She was born in
Colombia, and lived in Texas.
b. In early July, 1990, the victim and Risner were visiting
Cartagena, Colombia. On July 4, 1990, the victim was shot
fatally while walking with her sister and mother.
c. Colombian police officers arrested Raul Alberto Ramirez
Montoya (Ramirez Montoya) and Yolanda Zuluaga Velez (Zuluaga
Velez) at the scene. The two were implicated in the homicide
through questioning and were convicted of the murder.
d. Hotel and other records reflected that the Risners arrived
at the Hotel Bellavista in Cartagena three days before the
murder, on July 1, 1990. Risner's co-defendant and
relative, Jairo Hernandez Pachon ("Hernandez
Pachon"), arrived at the same hotel on the same date,
and shared a room with Ramirez Montoya and Zuluaga Velez,
adjacent to the room that Risner and his wife occupied. [In
the same proceeding as Risner, the court convicted Hernandez
Pachon of being an accomplice to the aggravated homicide and
sentenced Hernandez Pachon to ten years imprisonment.]
Hernandez Pachon also paid Ramirez Montoya and Zuluaga
Velez's hotel bill. Given their proximity to the victim
while she was a guest at the hotel, Ramirez Montoya and
Zuluaga Velez had opportunities to become aware of the
victim's identity and appearance. Further, a Colombian
police agent testified that he had obtained confidential
information that when Risner and his wife were walking on the
beach, Risner "made signs" to hire Hernandez Pachon
and his companions.
e. Risner was the beneficiary of at least five policies
insuring the victim's life for a total value of
approximately USD $1.73 million in the 1990s. Some, if not
all, of the insurance companies investigated the victim's
death and had declined to pay the proceeds to Rodriguez
Calderon, prompting Risner to sue them in the United States
District Court for the Northern District of Texas. See
Risner v. Amex Life Assur. Co., No. Civ. A No.
3-91-1646, 1993 WL 55957, at *l (N.D. Tex. Jan. 19, 1993)
(noting that Tito Risner was the designated beneficiary of
several life insurance policies on the victim's life and
had tried to collect against seven insurance companies). The
Colombian court had before it the results of said
investigation. The court found that Risner had purchased an
abnormal number of policies on the victim's life, in an
abnormal amount, considering that the victim worked as a
nurse and was not exposed to sufficient risk to justify such
coverage. The court also noted that the policies exceeded the
couple's economic capacity. [On approximately January 16,
1991, plaintiff Tito Jay Risner also appears to have filed
suit against the Estate of Patricia Gomez Risner in Dallas
County Probate Court (No. PR-91-00180-1).]
f. According to the victim's sister, during the afternoon
of the shooting, Risner continuously passed from one side to
the other of the hotel windows, from which he could see the
street and watch the shooting occur.
g. Following the murder, Colombian law enforcement
interviewed Risner, who asserted that his wife's death
should not be investigated. Colombian authorities who
conducted the interview also reported that Risner seemed
defensive and told them he did not know why they were taking
his statement. [In its decision, the Colombian court listed
the evidence before it, including an "Affidavit of Tito
Risner."] Crediting testimony from a police agent who
testified based on observing Risner and fifteen years of
professional experience, the court found that Risner
exhibited a strange and cunning attitude at the interview.
h. According to the victim's family, the fugitive told
them to do nothing regarding the investigation because there
was no point to it.
i. Risner departed Colombia abruptly on July 6, 1990, the day
after the victim's burial.
j. Ramirez Montoya, who ultimately was convicted of the
murder, made statements to police in an effort to prove his
own innocence. For example, Ramirez Montoya stated that the
victim's husband was outside of and opposite the hotel
where the shooting occurred and described the clothes the
victim's husband was wearing. The Colombian court found
that a prior familiarity and criminal link existed between
Ramirez Montoya and Risner because Risner was not on the
scene when the shooting occurred, whereas Ramirez Montoya was
apprehended immediately after the shooting, and Ramirez
Montoya's mentioning an absent stranger to exculpate
himself would have made little sense.
k. According to the victim's family, although Risner had
told the victim that he was a bachelor Spaniard named Tito
Jay Risner, they discovered after the victim's murder
that, in fact, he was a married Colombian named Jose Tito
Rodriguez Calderon. In April 1993, the victim's sister
reported to Colombian law enforcement, based on information
she had received from the fugitive's sister's
husband, that Rodriguez Calderon had changed his name to
Risner upon moving to the United States. Colombian law
enforcement determined, from Colombian civil records
including a photographic identity card, that Risner was born
in Colombia on February 6, 1944, as Jose Tito Rodriguez
Calderon (and was listed in records from 1965 as married to a
woman named Fronny Avillan, to whom the Colombian court
alternately refers as Fronny Saito). [The extradition request
includes a copy of the fugitive's Colombian identity
card, which was issued on July 30, 1965, reflecting this
information. See DOJ-OIA-008 (translation at DOJ-OIA-127).]
The Colombian court found, based on testimony from the
victim's family, that the victim was unaware of
Risner's double identity despite being married to him and
having two children with him, that Risner had deceived the
victim about his identity, and that this deception indicated
that Risner had mounted a plot against the victim.
l. While Risner was not physically present for the Colombian
court proceedings against him, the Colombian court received
and admitted two power-of-attorney forms from Tito Jay
m. The Colombian court decisions indicate that Risner's
Colombian counsel did not contest that Risner is Rodriguez
Dkt. No. 14 at 2-5 (footnotes omitted).
extradition process is sui generis" Matter of
Extradition of Noeller, No. 17 CR 664, 2018 WL 1027513,
at *6 (N.D. 111. Feb. 23, 2018) (citing Skaftouros v.
United States, 667 F.3d 144, 155 (2d Cir. 2011)). It is
"primarily an executive function, with the court playing
a defined and limited role." Id.; see Noeller v.
Wojdylo, 922 F.3d 797, 802 (7th Cir. 2019)
("'Authority over the extradition process is shared
between the executive and judicial branches.'"
(quoting Santos v. Thomas, 830 F.3d 987, 991 (9th
Cir. 2016) (en banc))). And, because "the judicial role
is narrow, ... discretionary judgments and matters of
political and humanitarian judgment are left to the executive
branch." Noeller, 922 F.3d at 802; see
also, e.g., Martin v. Warden, Atlanta Pen, 993 F.2d 824,
830 n.lO (11th Cir. 1993) ("[J]udicial intervention in
extradition proceedings based on humanitarian considerations
is inappropriate. Rather, humanitarian considerations are
matters properly reviewed by the Department of State."
(citing Escobedo v. United States, 623 F.2d 1098,
1107 (5th Cir. 1980))).
[That t]he larger assessment of extradition and its
consequences is committed to the Secretary of State ...
reflects the fact that extradition proceedings contain legal
issues peculiarly suited for judicial resolution, such as
questions of the standard of proof, competence of evidence,
and treaty construction, yet simultaneously implicate
questions of foreign policy, which are better answered by the
executive branch. Both institutional competence rationales
and our constitutional structure, which places primary
responsibility for foreign affairs in the executive branch
support this division of labor.
United States v. Kin-Hong, 110 F.3d 103, 110 (1st
Cir. 1997) (citation omitted).
United States Court of Appeals for the Fifth Circuit has
previously "outlin[ed] the process of international
The substantive right of a foreign country to request the
return of a fugitive and the duty of the United States to
deliver the fugitive depends entirely on the existence of a
treaty between the requesting nation and the United States.
18 U.S.C. § 3181 (1976), Factor v.
Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78
L.Ed. 315 (1933). To invoke its right to extradite a
fugitive, the requesting nation must submit its request to a
state or federal court. 18 U.S.C. § 3184 (1976). (In
practice, the requesting nation submits its request to the
Secretary of State who may request the Justice Department to
file a verified extradition complaint. See Matter of
Assarsson, 670 F.2d 722, 725 (7th Cir. 1982).) The court
determines whether the fugitive is subject to extradition
and, if so, must order the fugitive's commitment and
certify the supporting record to the Secretary of State.
Id. The decision to surrender the fugitive then
rests in the discretion of the Secretary of State. 18 U.S.C.
§ 3186 (1976); Escobedo v. United States, 623
F.2d 1098, 1105 n.20 (5th Cir.), cert, denied, 449
U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980).
In re U.S., 713 F.2d 105, 107-08 (5th Cir. 1983)
U.S.C. §3184 provides:
Whenever there is a treaty or convention for extradition
between the United States and any foreign government, or in
cases arising under section 3181(b), any justice or judge of
the United States, or any magistrate judge authorized so to
do by a court of the United States, or any judge of a court
of record of general jurisdiction of any State, may, upon
complaint made under oath, charging any person found within
his jurisdiction, with having committed within the
jurisdiction of any such foreign government any of the crimes
provided for by such treaty or convention, or provided for
under section 3181(b), issue his warrant for the apprehension
of the person so charged, that he may be brought before such
justice, judge, or magistrate judge, to the end that the
evidence of criminality may be heard and considered. Such
complaint may be filed before and such warrant may be issued
by a judge or magistrate judge of the United States District
Court for the District of Columbia if the whereabouts within
the United States of the person charged are not known or, if
there is reason to believe the person will shortly enter the
United States. If, on such hearing, he deems the evidence
sufficient to sustain the charge under the provisions of the
proper treaty or convention, or under section 3181(b), he
shall certify the same, together with a copy of all the
testimony taken before him, to the Secretary of State, that a
warrant may issue upon the requisition of the proper
authorities of such foreign government, for the surrender of
such person, according to the stipulations of the treaty or
convention; and he shall issue his warrant for the commitment
of the person so charged to the proper jail, there to remain
until such surrender shall be made.
18 U.S.C. § 3184; see also 18 U.S.C. §
3181(a)(1) ("The provisions of this chapter relating to
the surrender of persons who have committed crimes in foreign
countries shall continue in force only during the existence
of any treaty of extradition with such foreign
government."). "This section authorizes a judicial
officer to hold a hearing to consider a request for
surrender. If the judicial officer finds the evidence
sufficient to sustain the charges under the treaty or
convention, then the officer certifies to the Secretary of
State that the individual may be surrendered."
Ntakirutimana, 184 F.3d at 422 (citing 18 U.S.C.
§ 3186 ("conferring final authority on the
Secretary of State to order a fugitive's surrender where
a judicial officer has ruled that the requirements for
extradition have been met")).
another judge in this circuit recently explained:
International extradition proceedings are governed both by
statute (18 U.S.C. §§ 3181, 3184, 3186, 3188-3191)
and by treaty. See 18 U.S.C. § 3184. In
applying an extradition treaty, the court is to construe it
liberally in favor of the requesting nation. Factor v.
Laubenheimer, 290 U.S. 276, 293-94 (1933)..... Because
the Treaty is central to the proceedings, at the extradition
hearing, the court will have to determine whether the Treaty
is a valid extradition treaty in force between the United
States and [the requesting country], then must determine
whether it is applicable, and finally consider whether the
requirements of the treaty have been satisfied. See
18 U.S.C. § 3184; Bozilov v. Seifert, 983 F.2d
140, 143 (S.D.N.Y. 1999) (considering whether extradition
request was made timely under the terms of the treaty).
In addition to determining the validity and applicability of
the Treaty, the court must determine whether the charged
offenses may provide a basis for [Risner's] extradition.
This requires that the court determine whether the charged
offenses are listed in the Treaty as extraditable offenses.
See, e.g., Cucuzzella v. Keliikoa, 638 F.2d 105, 107
(9th Cir. 1981).....
The court must finally determine whether the evidence
supports a probable cause finding as to each charged offense.
Matter of Extradition of Lahoria, 932 F.Supp. 802,
805 (N.D. Tex. 1996). According to the applicable statute,
the court's responsibility is to determine whether, under
the Treaty, the evidence is sufficient to sustain the charges
that [Risner] committed the offenses alleged in the
complaint. 18 U.S.C. § 3184.
U.S. v. Valentino, No. 4:18-mj-00146, 2018 WL
2187645, at *4 (S.D. Tex. May 11, 2018).
Section 3184 requires the court to decide whether
'evidence [is] sufficient to sustain the charge,' the
scope of an evidentiary hearing is not to determine guilt or
innocence." Bonilla, 2014 WL 934903, at *3;
see Noeller, 2018 WL 1027513, at *7 ("It cannot
be too often repeated that the core limitation applicable in
extradition hearings in federal court is that an extradition
proceeding is not a trial. Questions of credibility and guilt
or innocence are not to be considered. These limitations have
been recognized by every court in every extradition case
since the beginning of the Republic." (citations
the court fulfills its limited function by conducting a
"hearing [that] determines only whether circumstances
warrant certification that the respondent is eligible for
extradition." Bonilla, 2014 WL 934903, at *3
(emphasis added). Evidentiary factors relevant to the
court's determination include:
1. Personal and subject matter jurisdiction; 2. Existence of
a valid extradition treaty between United States of America
and foreign requesting state; 3. Required documents presented
in accordance with United States law, translated and duly
authenticated by a United States consul; 4. Pending criminal
charge in foreign requesting state; 5. Offense charged is
extraditable; 6. Offense charged satisfies requirement of
double criminality; 7. Respondent is person sought; and 8.
Id. at *4 (emphasis added).
Godwin, 2014 WL 5093281, at *1-*2 (emphasis omitted
and citation modified).
Fifth Circuit has generally explained,
[c]ertification of eligibility for extradition requires a
finding of probable cause that the accused committed the
charged offense. Probable cause is "the existence of a
reasonable ground to believe the accused guilty of the
Quintanilla v. U.S., 582 Fed.Appx. 412, 415 (5th
Cir. 2014) (citations omitted); accord
Ntakirutimana, 184 F.3d at 427 ("In reviewing a
request for surrender, the committing court must determine
whether probable cause exists to sustain the charges against
the accused."). And Mr. Risner asserts that
[t]he fact that Colombia convicted Mr. Risner does not alter
the analysis because the conviction was in absentia. When a
conviction is obtained in absentia, courts have treated the
extradition request as if it involved a pending charge,
therefore still requiring sufficient and independent evidence
to justify a reasonable belief that the relator committed the
crime. See, e.g., Germany v. United States, 2007
U.S. Dist. LEXIS 65676, at *20-21 (E.D.N.Y. Sep. 5, 2007)
("Where a defendant was convicted in absentia, the
conviction is merely a charge and an independent
determination of probable cause in order to extradite must be
made"); Argento v. Horn, 241 F.2d 258, 259 n.1
(6th Cir. 1957); Gallina v. Fraser, 278 F.2d 77,
78-9 (2nd Cir. 1960). Presence of counsel alone at a trial is
insufficient to give an in absentia conviction conclusive
effect for a probable cause determination. See In re
Extradition of Ernst, 1998 U.S. Dist. LEXIS 10523, at
*21-4 (S.D.N.Y. July 14, 1998); see also United States v.
Fernandez-Morris, 99 F.Supp.2d 1358, 1365 (S.D. Fla.
1999) (finding that relators were convicted in absentia
despite having been represented by counsel).
Dkt. No. 24 at 8. Another judge in this circuit recently
considered the state of the law on this issue:
In this case, the parties disagree on the significance of the
conviction by the Dutch court. The United States Government
argues it is de facto proof of probable cause to support the
charges. Valentino contends that when, as here, the
conviction is obtained in absentia, it should be considered
nothing more than a "mere charge" so that probable
cause must still be established independently of the
conviction. The courts in this Circuit do not appear to have
directly addressed this issue. See Matter of Extradition
of Porumb, No. 6:18-MJ-00010, 2018 WL 814568, at *4
(W.D. La. Feb. 9, 2018) ("The Government counters that
no probable cause determination is required because he was
already convicted albeit in absentia. Assuming without
deciding the Government's position as to the second
requirement is correct....") (emphasis added). Courts in
other circuits have reached conflicting conclusions.
Compare United States v. Bogue, No.
98-CRIM.A.-572-M, 1998 WL 966070, at *2 (E.D. Pa. Oct. 13,
1998) ("[A] conviction, although obtained in absentia,
provides sufficient evidence of criminality to satisfy the
probable cause requirements of 18 U.S.C. § 3184.")
with In Matter of Extradition of Ernst, No. 97
CRIM.MISC. 1 PG.22, 1998 WL 395267, at *7 (S.D.N.Y. July 14,
1998) ("[W]here, as in this case, the conviction is the
result of a trial in absentia, the conviction is regarded
merely as a charge, requiring independent proof of probable
Convictions in absentia can generally be organized into three
categories: 1) cases in which the accused was present for
some or all of the proceeding leading to the conviction,
U.S. ex rel. Bloomfield v. Gengler,507 F.2d 925 (2d
Cir. 1974) (present for trial at which he was acquitted, not
present for appeal that overturned acquittal);
Lindstromv. Gilkey, No. 98 C 5191, 1999 WL
342320 (N.D. Ill. May 14, 1999) (present for majority of
trial before fleeing); 2) cases in which the accused was not
present but was fully represented by counsel, Gallina v.
Fraser,177 F.Supp. 856, 859 (D. Conn. 1959),
affd,278 F.2d 77 (2d Cir. 1960); and 3) cases in
which the accused was entirely unrepresented. In re
Ribaudo, No. 00 CRIM.MISC.1PG.KN, 2004 WL 213021
(S.D.N.Y. Feb. 3, 2004). Although not universal, the
overriding principal in cases involving convictions in
absentia appears to be this: when there is credible evidence
supporting the conviction, either because the accused
defended himself at trial, had evidence presented on his
behalf at trial, or the requesting state has provided