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United States v. In re Extradition of Risner

United States District Court, N.D. Texas, Dallas Division

November 18, 2019

UNITED STATES OF AMERICA
v.
IN THE MATTER OF 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.

          MEMORANDUM OPINION AND ORDER

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         Applicable Background

         On 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.

         Mr. 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. at 1.

         The United States then filed a Notice of Filing of Supplement to Extradition Request, see Dkt. No. 26, in which it explained:

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 of Columbia.
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.

         The 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 explained that

[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.

         Mr. 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.

         The 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.'").

         The 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.

         As further background, the United States asserts that,

[a]ccording to information the Government of Colombia has provided:
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 Risner.
m. The Colombian court decisions indicate that Risner's Colombian counsel did not contest that Risner is Rodriguez Calderon.

Dkt. No. 14 at 2-5 (footnotes omitted).

         Legal Standards

         "The 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).

         The United States Court of Appeals for the Fifth Circuit has previously "outlin[ed] the process of international extradition":

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) (footnote omitted).

         18 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")).

         As 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).

         "Although 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 omitted)). Rather,

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. Probable cause.
Id. at *4 (emphasis added).

Godwin, 2014 WL 5093281, at *1-*2 (emphasis omitted and citation modified).

         As the 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 crime."

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 cause.").
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 ...

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