Reply of the Government of the United States to

January 27, 2000 Petition

**[Case No. 12.243 Juan Raul Garza]{.underline}**

The Government of the United States submits this Reply to the petition
filed in the case of [Juan Raul Garza]{.underline}, Case No. 12.243. The
United States respectfully requests that the Inter-American Commission
on Human Rights ("Commission") declare the petition inadmissible under
Commission Regulations 35(c) and 41(b)-(c): The petition fails to state
facts that constitute a violation of rights set forth in the American
Declaration of the Rights and Duties of Man ("American Declaration") and
is manifestly groundless.

# FACTUAL AND PROCEDURAL HISTORY

For over a decade, Juan Raul Garza controlled and operated a major drug
trafficking enterprise through which he sold thousands of pounds of
marijuana in the United States smuggled from Mexico. As his criminal
enterprise grew in scope, Garza decided to eliminate individuals from
his organization who had earned his suspicion. To this end, Garza either
ordered or carried out the execution-style murder in the United States
of three individuals -- Gilberto Matos, Erasmo De La Fuente, and Thomas
Rumbo. These facts are undisputed.

After an extensive trial in the United States District Court for the
Southern District of Texas, Garza was convicted of five violations of
federal drug trafficking laws, operating a continuing criminal
enterprise, money laundering, and three counts of killing in furtherance
of a continuing criminal enterprise. Later, at a punishment hearing, the
government introduced evidence showing that Garza had committed four
additional murders -- three by gunshot, one by strangulation and
suffocation -- in Mexico. Following the punishment hearing, the jury
recommended a sentence of death.

Garza's conviction and sentence were affirmed by the Fifth Circuit Court
of Appeals. [United States v. Garza]{.underline}, 63 F.3d 1342 (5th Cir.
1995). The Fifth Circuit denied rehearing en banc, [United States v.
Garza]{.underline}, 77 F.3d 481 (5th Cir. 1995), and the United States
Supreme Court denied certiorari review. [Garza v. United
States]{.underline}, 519 U.S. 825 (1996).

In December 1997, Garza filed a motion to vacate his sentence under 28
U.S.C. section 2255 (the federal habeas corpus statute), arguing that
the Government's introduction of evidence relating to four murders in
Mexico violated his rights under the Due Process Clause of the Fifth
Amendment to the United States Constitution. Garza's motion was denied
by the District Court in April 1998.

Subsequently, Garza requested a certificate of appealability from the
District Court, required under 28 U.S.C. section 2253(c)(1) for Garza to
appeal the District Court's denial of habeas review. When the District
Court denied his request, Garza repeated his request before the Fifth
Circuit Court of Appeals. The Fifth Circuit also denied his request. The
court concluded that he had not made a "substantial showing of the
denial of a constitutional right\" required under the statute. [United
States v. Garza]{.underline}, 165 F.3d 312, 315 (5th Cir. 1999). The
United States Supreme Court denied certiorari review of the Fifth
Circuit's decision in November 1999. [United States v.
Garza]{.underline}, \_\_U.S.\_\_, 120 S.Ct. 502 (1999).

On January 27, 2000, Garza lodged this petition with the Commission,
alleging violations of Article 1 (right to life), Article 18 (right to a
fair trial) and Article 26 (right to due process of law) of the American
Declaration. The Commission forwarded Garza's petition to the Government
of the United States on the same day, requesting that precautionary
measures be taken "to preserve Garza's life and physical integrity so as
not to hinder the processing of his case before the Inter-American
system."

# ARGUMENT

The petition portrays this as a case in which Garza was victimized by a
system that failed to afford him adequate protection for his right to a
fair trial. This could not be farther from the truth. Garza's
proceedings were conducted in complete compliance with United States
law, the rights set forth in the American Declaration, and customary
international law.

The simple fact is that Garza had every opportunity to present his case,
to rebut the Government's case, and to challenge all of the evidence
presented against him -- during both the guilt and sentencing phases of
trial. Arguments to the contrary merely attempt to divert attention from
the facts -- Garza ordered or committed each of three execution-style
murders during a violent, brutal reign over a transnational
drug-smuggling enterprise. The Commission should see through the
petition's attempt to disguise the true facts, and it should declare the
petition inadmissible.

I.  **The Commission's Request For The United States To Take
    Precautionary Measures Is A Recommendation And Therefore Not
    Obligatory.**

The practice of requesting precautionary measures is based on Article 29
of the Commission Regulations. The sole basis this regulation has in the
Commission's organic document -- the American Convention on Human Rights
("American Convention") -- or in the Statute of the Inter-American
Commission on Human Rights ("Commission Statute") is the Commission's
authority to "make recommendations." Thus, its request for the United
States to take precautionary measures in this case is a non-binding
"recommendation," of which the U.S. Department of State has taken note.

II. **Garza's Sentencing Did Not Violate Any Rights Set Forth In The
    American Declaration**.

Petitioner claims that the United States[^1] has violated Article 1
(right to life), Article 18 (right to a fair trial), and Article 26
(right to due process of law) of the American Declaration in the
sentencing of Garza. Because the petition fails to state facts that
constitute a violation of any rights set forth in the American
Declaration and is manifestly groundless, it should be declared
inadmissible.

A.  [The Petition Does Not Allege A Violation Of The Right To
    Life]{.underline}

In conclusory fashion, the petition alleges that "on a straight reading
of the \[American Declaration\], it would seem that the death penalty
constitutes a violation of the right to life." This, however, is not a
"straight reading" of the text. At the time of the adoption of the
American Declaration there was no international legal prohibition on the
death penalty. There is similarly no such prohibition today.

Although Article 1 of the American Declaration protects the right to
life, this right does not proscribe capital punishment. Throughout the
world, most countries practiced capital punishment at the time the
American Declaration was adopted, and a majority of countries still do.
The same was and is true for the Universal Declaration of Human Rights.
In addition, Article 6 of the International Covenant on Civil and
Political Rights, to which the United States is a party, expressly
recognizes the right of countries that have not abolished the death
penalty to impose it for the most serious crimes.

A number of countries have chosen to become parties to other treaties
obligating them to abolish capital punishment, either entirely or in
ordinary circumstances. [See]{.underline}, [e.g.]{.underline}, [Protocol
to the American Convention on Human Rights]{.underline}, [reprinted
in]{.underline} [Basic Documents]{.underline} at 83; [Second Optional
Protocol to the International Covenant on Civil and Political Rights
Aiming at the Abolition of the Death Penalty]{.underline}, U.N. Doc.
A/RES/44/128 (1991). These treaties, however, neither bind non-parties,
such as the United States, nor change the status of capital punishment
under international law.

The simple fact is that a majority of countries retain the death penalty
for the most serious offenses. The Secretary-General reported to the
U.N. Commission on Human Rights that as of March 10, 1999, 87 countries
retained and used the death penalty for the most serious ordinary crimes
and that another 26 countries retained the death penalty for ordinary
crimes but had not executed anyone within the last 10 years; indeed,
only 65 countries have formally abolished the death penalty for all
crimes. [See]{.underline} U.N. Doc. E/CN.4/1999/52/ Corr.1. State
practice is clear and consistent: there is no prohibition in
international law on the use of the death penalty.

When carried out in accordance with due process, capital punishment for
the most serious crimes is consistent with international law, including
applicable human rights treaties. This case is no different. Garza's
crimes -- three execution-style murders -- were sufficiently serious to
merit a sentence of death. Moreover, he received all appropriate due
process, including the review of his case numerous times by the federal
district and appellate courts.

Accordingly, the petition fails to state facts which show a violation of
the right to life, and is manifestly groundless. On this ground, the
Commission should declare this claim inadmissible.

B.  [The Petition Does Not Allege A Violation Of Either The Right To A
    Fair Trial Or The Right To Due Process of Law]{.underline}.

According to the petition, Garza's right to a fair trial was violated by
the introduction of evidence of "unadjudicated crimes" during the
sentencing phase of Garza's trial. The petition also appears to rest its
due process argument on the same basis: specifically, the petition
claims that the principle of "equality of arms" was violated.[^2]

While the petition is correct in noting that the principle of equality
of arms is implicated in the right to a fair trial, it mistakenly
attempts to expand the concept beyond that which is recognized under
international law. There was nothing about Garza's trial -- during
either the liability or sentencing phase -- that fell short of
international standards for both equality of arms and Garza's right to a
fair trial.

As a preliminary matter, the Commission should note that the petition
relies entirely for support on opinions of judicial and quasi-judicial
bodies outside the Inter-American System of Human Rights. More
important, none of these authorities interpret or apply the American
Declaration -- the sole instrument the Commission is authorized to
interpret and apply to the United States. [See]{.underline} [Commission
Statute]{.underline}, art. 20(a). None of these decisions is binding on
the Commission, nor can the paucity of authority cited by the petition
be considered as reflective of customary international law on this
issue.

Indeed, the law of equality of arms is in stark contrast to the
petition's portrayal of the principle. As the International Criminal
Tribunal for the Former Yugoslavia ("ICTY") has held, "the principle of
equality of arms obligates a judicial body to ensure that neither party
is put at a disadvantage when presenting its case." [See]{.underline}
[Prosecutor v. Tadic]{.underline}, Case No. IT-94-1-T, Judgment (Appeals
Chamber, Int'l Crim. Trib. Former Yugo., 1999) Equality of arms requires
procedural equality, not substantive equality. [See]{.underline}
[id.]{.underline} Here, the petition alleges no facts that would
indicate Garza was treated with anything but full procedural equality
over the course of his trial and sentencing.

In [Tadic]{.underline}, the court rejected the defendant's claim that he
was denied equality of arms because he was unable to secure the
attendance of witnesses for his defense at trial. Here, the petition
presents a remarkably similar claim: because Garza was unable to secure
the attendance of alleged favorable witnesses and to obtain unspecified
exculpatory evidence at his sentencing, he claims that he was denied
equality of arms. Just as the ICTY rejected this improper expansion of
this principle, the Commission should also reject it as inconsistent
with international law.

Further, contrary to the petition's assertions, the law of the European
Court of Human Rights and the Human Rights Committee is in accord. For
instance, in [Dombo Beheer B.V. v. The Netherlands]{.underline}, 27 Oct.
1993, A. 274, the European Court adopted the view of the European
Commission that "\`equality of arms' implies that each party must be
afforded a reasonable opportunity to present his case, including his
evidence, under conditions that do not place him at a substantial
disadvantage vis-à-vis his opponent." And, in [B.d.B. et al. v. The
Netherlands]{.underline}, Communication No. 273/2989 (30 March 1989),
U.N. doc. Supp. No. 40 (A/44/40) at 286 (1989), the Human Rights
Committee observed that Article 14 of the International Covenant on
Civil and Political Rights (the right to a fair trial) "guarantees
procedural equality" to ensure that the conduct of judicial proceedings
is fair.

Reviewing this case in light of the above authorities, it is clear that
neither [the law]{.underline} nor [the court]{.underline} imposed any
conditions that placed Garza at a substantial disadvantage vis-à-vis the
prosecution. While it is true that the prosecution had some advantages
-- as does the state in [any]{.underline} criminal prosecution -- the
procedural conditions at sentencing were the same for both parties.
Garza was free to cross-examine all of the prosecution's witnesses.
Garza was free to impeach the prosecution's evidence in any manner.
Garza was free to call witnesses in his defense. Mere access to greater
resources by the prosecution cannot be the basis for inequality of arms.
If this were the standard, no criminal trial could possibly satisfy such
a broad reading of the principle.[^3]

The very statute which the petition puzzlingly cites as evidence of
inequality unambiguously creates procedural [equality]{.underline} for
both parties: "Any other information relevant to such mitigating or
aggravating factors may be presented [by either the Government or the
defendant]{.underline} . . ." 21 U.S.C. § 848 (emphasis added). The
petition is correct in noting that the ordinary rules of evidence do not
apply during a sentencing proceeding, however this works to the benefit
(and detriment) [of both parties]{.underline}. Section 848 creates a
procedurally level playing field. And, indeed, this is the very nature
of the equality of arms principle.[^4]

Indeed, U.S. law goes well beyond what is required by this principle.
Garza has been represented throughout this case (and continues to be
represented) by competent appointed counsel. Federal law requires the
appointment of experienced counsel for every capital defendant, and also
guarantees the availability of funds for necessary investigative and
forensic services. See 21 U.S.C. § 848(q)(4)-(10); 18 U.S.C. § 3005.
These procedural protections go far beyond the minimum required by
international law.

None of the authorities cited in the petition contradict the notion that
equality of arms requires procedural equality, not substantive equality.
As pointed out, in [Barbera, Messegue and Jabardo v. Spain]{.underline},
the European Court found that the right to a fair trial requires that a
defendant be able "to examine or have witnesses against him and to
obtain the attendance of witnesses on his behalf under the same
conditions as witnesses against him." 11 EHRR 360 (1994). No facts are
alleged showing the court either prevented Garza from examining adverse
witnesses or from obtaining the attendance of witnesses on his behalf.
Similarly, there is no evidence the court treated Garza's witnesses, or
his ability to examine them, any differently from the manner in which it
treated the prosecution's witnesses. Garza's sentencing was conducted
entirely in accordance with the principle articulated in
[Barbera]{.underline}.

Finally, in [Jespers v. Belgium]{.underline}, a case in which the
European Commission found that the principle of equality of arms had
[not]{.underline} been violated, the petition correctly notes that the
European Commission observed that equality of arms applied to
sentencing, albeit it did so in dicta. [See]{.underline} 27 D.R. 61
(1981). More important, however, was the Commission's recognition of the
limited scope of this principle, [i.e.]{.underline}, that under the
European Convention, equality of arms requires that a defendant have
access to any information in the prosecution's possession that might
exonerate him or lead to a reduction in sentencing. [Id.]{.underline}
This principle is equally applicable in federal courts under the U.S.
Constitution, [see]{.underline} [Brady v. Maryland]{.underline}, 373
U.S. 83 (1963), and indeed, the Fifth Circuit Court of Appeals found
that the government fully complied with [Brady]{.underline} in this
case. [United States v. Garza]{.underline}, 165 F.3d 312, 314-15 (5th
Cir. 1999). The petition has identified no evidence to the contrary.

U.S. law permits both the government and the defendant to present all
relevant evidence of mitigating or aggravating factors during
sentencing. And, under U.S. law the prosecution must turn over to the
defendant any and all mitigating evidence. Without evidence that the
court deviated from these basic guarantees of procedural equality, the
petition's claim of inequality of arms is without merit. Accordingly,
the Commission should declare this claim inadmissible.

# [CONCLUSION]{.underline}

In light of the above, it should be clear to the Commission that the
petition fails to allege facts that reflect a violation of the right to
due process, the right to life, or the right to a fair trial in the case
of Juan Raul Garza. Accordingly, the United States respectfully requests
that the Commission declare the petition inadmissible.

[^1]: Interestingly, the petition identifies Janet Reno, U.S. Attorney
    General, and Kathleen Hawk Sawyer, Director of the Federal Bureau of
    Prisons, as the persons who committed the alleged violations of the
    American Declaration. However, Garza was not sentenced by either of
    these persons. His sentence was recommended by a jury of his peers,
    empanelled by a federal district court and operating pursuant to
    law. While petitioner takes issue with the U.S. Attorney's use of
    evidence of "unadjudicated offenses" at the sentencing phase of
    Garza's trial, such use is entirely lawful under federal
    authorities, and indeed, was permitted by the federal judge
    presiding over this case. There is simply no basis in fact or law
    for the petition's claim that Ms. Reno or Ms. Sawyer violated
    Garza's rights.

[^2]: The petition alleges that Garza's right to due process of law was
    violated by merely repeating the argument made in support of its
    claim that Garza's right to a fair trial was violated,
    [i.e.]{.underline}, the use of evidence of "unadjudicated crimes"
    during the sentencing phase created inequality of arms.

    Under international law, the principle of equality of arms is
    generally considered part of the right to a fair trial.
    [See]{.underline}, [e.g.]{.underline}, [Grant v.
    Jamaica]{.underline}, Communication No. 353/1988, U.N. Doc.
    CCPR/C/50/D/353/1988 (1994)(decision of the U.N. Human Rights
    Committee recognizing "equality of arms" as an element of the right
    to a fair trial protected by Article 14 of the International
    Covenant on Civil and Political Rights). In any event, the
    Government will address the petition's due process and fair trial
    claims in this section by explaining how the principle of equality
    of arms was fully observed in this case.

[^3]: The petition places great emphasis on a Mutual Legal Assistance
    Treaty between the United States and Mexico which it claims "shows
    clearly that the state and the victim did not have equality of
    arms." This conclusion does not flow from either the existence of
    the treaty or from the petition's recitation of the treaty's
    non-self-executing treaty clause.

    First, for the reasons detailed above, the treaty's existence does
    not create inequality -- it merely enhances the state's ability to
    collect evidence against the accused. The treaty in no way restrains
    the defendant from challenging that evidence or presenting his own.

    Second, the fact that the treaty does not create any private rights
    is irrelevant. Any and all aggravating or mitigating evidence
    collected by the government is required -- under the U.S.
    Constitution -- to be turned over to the defendant before trial.
    [See]{.underline} [Brady v. Maryland]{.underline}, 373 U.S. 83
    (1963).

    Further, the petition's claim regarding the lack of a letters
    rogatory process between the United States and Mexico for criminal
    matters is simply wrong. The existence of a Mutual Legal Assistance
    Treaty between the two countries in no way affects the ability of a
    litigant -- either civil or criminal -- from obtaining evidence
    through the letters rogatory process. Similarly meaningless is the
    decision of Mexico and the United States not to apply the
    Inter-American Convention on Letters Rogatory to criminal matters.
    The letters rogatory process is one rooted in custom, and it exists
    between two countries willing to grant comity to each's judicial
    process regardless of whether they are in treaty relations.

[^4]: Also puzzling is the petition's reference to Justice Marshall's
    statement in [Williams v. Lynagh]{.underline}, 484 U.S. 935, 938
    (1987). Justice Marshall indicated his objection to a Texas statute
    which permitted the introduction of evidence of unadjudiated crimes
    during sentencing on the defendant's application for a writ of
    certiorari. At least six other justices found that the case was not
    worthy of review, therefore, Justice Marshall's statement is of no
    legal import -- the Supreme Court never reviewed the case.