r rthHE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

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In tM ifttiø, 6tradition of

MA$MORENO-VAZQUEZ ) 3:06-C V-761 -MEF-CSC

RESPONSE TO THE UNITED STATES' SUPPLEMENTAL EXTRADITION

MEMORANDUM

Status of the Case

Initially, the United States filed an extradition document alleging that the

respondent had taken her two children out of the country without their father's

permission in violation of Mexican law and she was charged in Mexico with that offense.

The first document was ridiculous on its face as to be so charged in Mexico with that

offense there has to be a joint custody order. In this instance, the order as to custody

provided custody exclusively to the respondent. Therefore it was on its face not a

violation of the Mexican statute to remove the children from Mexico without the father's

permission.

It should be pointed out that the father in this instance is one of the top two or

three officials in the Mexican federal Attorney General's office. This Court should take

judicial notice of the fact that the United States Department of State recognizes that

Mexican law enforcement and other officials regularly engage in harassment,

mistreatment and extortion. Exhibit A. Undoubtedly such conduct explains how the

Attorney General's office in Mexico can obtain a facially improper charge without any

hesitation.

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Upon realizing that the United States may have a problem with such an absurd

charge, the Mexican Attorney General's office filed a new petition alleging in essence

that the respondent had forged the name of her husband on the children's passport

applications. He seeks to prove that with his own employees masquerading as experts

as to the authenticity of the documents at issue. Once again, the protagonist's own

office with his own employees professing to be experts, obtained a charge of fraudulent

documents. This is after he sought to obtain an order under the Hague Convention to

return the children (of which prosecution was refused) and sought to have the

respondent and her children deported from the United States (which is administratively

stayed pending final ruling on their application for permanent residency).

On April 4, 2008, a status and scheduling conference was held on this case.

Prior to that counsel for the respondent had provided the Government with a 16 page

analysis of its petitions for extradition which pointed out that there were translation

errors, numerous illegible copies and missing pages throughout. Exhibit B. At the

status conference the United States seemed to make the argument that this was

irrelevant, It states in its brief that "In the end, this extradition is a rather straightforward

matter". It is not.

Legal Standards

While the Middle District of Alabama has no precedent decisions regarding

extradition, there is a full and complete body of law set forth in 11th Circuit precedent

cases. Under established precedent, a Magistrate Judge has great discretion in

determining extraditability. He may only be overturned if (1) there is no jurisdiction; (2)

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the offense charged is not within contemplation of the treaty; or (3) there is no evidence

of a reasonable ground to find the accused guilty of the alleged crime. Kastnerova v.

United States, No. 03-1 4119 (11th Cir. 04/08/2004). (All cited cases are attached hereto

Exhibit C); See Also, Afaanasjev. V. Huriburt Jr. No. 04-1 3303 (July 26, 2005). As

regards this case, the respondent does not contest the jurisdiction or venue of this Court

to hear the case and would agree that it is in the proper court.

Whether the offense charged is within contemplation of the treaty is an element

which is a mixed question of fact and law. In essence, what must be proven by the

United States is that the crime alleged to have been violated in Mexico is equally

criminalized within the United States. See. In re Commissioner's Subpoenas, 325 F.3d

1287) (11th Cir. 2003). The burden of proof is on the United States to establish that fact

by a preponderance of the evidence. ki. In other words, it is not enough for the United

States to merely prove that the respondent has been charged in Mexico. It must prove

that the charge in Mexico is dually criminal within both Mexico and the United States.

The offense for which the foreign state seeks assistance must also constitute a crime in

the requested state.jd..at 9. No showing has been made in this matter on either of the

petitions and as such there would be insufficient proof of the second factor (the offense

charged being in contemplation of the treaty).

The third factor - evidence of a reasonable ground to find the accused guilty of

the crime charged - is obviously the most litigated. This requires the Magistrate judge to

find (a) reliable evidence and (b) a reasonable ground or theory of the case. See,

Valenzuela v. United States, 286 F.3d 1223 (11th Cir. 2002). The Valenzuel p case is

particularly instructive. In that case the magistrate judge found a lack of properly

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submitted evidence and therefor a lack of probable cause. ithat 2. The United States

seeing that the case was failing attempted to file certain documents not submitted with

the petition and therefor not subject to the relaxed evidentiary rules as these new

documents (which came from a proffer session evidently and were not to be used

against the respondents). The judge found them inadmissable as not arising from the

Italian petition. kL

The United States then, having lost on the first application submitted a second

application containing the previously excluded proffer documents and submissions.

Over the respondent's objections, the Court accepted these documents and ordered the

respondents extradited. idat 3. The respondent then filed a petition for habeas corpus

with the District Court which was denied (such is the appropriate was to appeal an

extradition order as there is no direct appeal of such to the Circuit Court or from a

magistrate to the Article Three Judge) which was denied. An appeal of that denial

followed to the Eleventh Circuit.

The Court found that the use of the proffer statements which were not to be

disclosed rendered the extradition hearing "fundamentally unfair and denied them due

process of law". it at 4. The Eleventh Circuit then overruled the magistrate judge and

denied extradition. ji.

It should be clear from this case that the Government's assertion that this

extradition is a "straightforward matter" intimating that it is a paperwork function for

which there is nothing for this Court to consider is nonsense. An extradition is a hearing

requiring proof, and proper evidence which is convincing. It is not a hearing where a

criminal standard of "beyond the reasonable doubt" is imposed, but it is not a routine

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ministerial function as the government seeks this court to believe. There are at least 20

reported cases in the Eleventh Circuit alone on extradition matters. In Valenzuela, there

is the imposition of due process rights on the respondents as well.

In this case the United States must prove by a preponderance of the evidence

that the charges meet the requirement of duel criminality. It must then prove that there

is reliable evidence establishing a reasonable theory of the case under the probable

cause standard. It has done neither to date.

Respectfully submitted,

Ben Bruner

Attorney at Law

505 S. Perry Street

Montgomery, Alabama 36104

(334) 323 4463

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document on the

parties shown below by placing a copy of the same in the U.S. Mail, properly addressed

and postage prepaid.

Donethis ______day of ______________, 2008.

e'n Bruner

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Leura Canary, Esq.

United States Attorney

P.O. Box 197

Montgomery, Alabama 36101

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