1

 18 U.S.C. § 3184 provides, in pertinent part:

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 to do so by a court of the United States,

. . . 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. . . . 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.

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

In the Matter of the Extradition of )

)

)

MARIA del ROSARIO MORENO-VAZQUEZ ) CIV. NO. 3:06cv761-CSC

a/k/a MARIA COONLEY )

MEMORANDUM OPINION AND ORDER

This is a proceeding pursuant to 18 U.S.C. § 31841

 on a request for extradition. On

August 23, 2006, the United States filed a formal Request for Extradition of Maria del Rosario

Moreno-Vazquez (“Moreno”) at the behest of the United Mexican States (“Mexico”). (Doc.

# 1). Moreno is charged in Mexico with the offense of trafficking in minors in violation of

Article 366-quáter in relation to Article 366-ter of the Federal Penal Code of Mexico. On

September 25, 2006, the United States filed a second Request for Extradition (doc. # 8) which

is supported by charges in Mexico against Moreno for the offense of forgery of a public

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2

 Pursuant to the E-Government Act of 2002, as amended on August 2, 2002, and M.D. Ala.

General Order No. 2:04mc3228, the court refers to the minor children only by their initials.

2

document.

Moreno was arrested and arraigned on a warrant issued by this court. On June 11,

2008, the court held an evidentiary hearing on the request for extradition in accordance with

18 U.S.C. § 3184. For the reasons that follow, the petition for a certificate of extraditability

will be GRANTED with respect to the first request for extradition (doc. # 1) and DENIED

with respect to the second request for extradition (doc. # 8). 

FACTS

Mexico has requested that Moreno be extradited to face criminal charges of trafficking

in minors and forgery of public documents. The charges were brought against Moreno by her

ex-husband, Jose Fernando Castillo-Tapia (“Castillo”). During their marriage, Moreno and

Castillo had a son, L.F.C.M.,2

 born on August 31, 1989. On October 1, 1991, as part of their

divorce, Moreno and Castillo entered into an agreement awarding physical custody of

L.F.C.M. to Moreno. The divorce was final on January 29, 1992. (Gov’t Ex. 68). After the

divorce, Moreno and Castillo had their second child, a daughter M.F.C.M., born on October

10, 1994. Moreno and Castillo applied their prior custody agreement to this child.

On February 28, 2008, Castillo went to visit his children at their mother’s house in

Naucalpan, Mexico. When Castillo arrived at the house, Moreno’s mother informed Castillo

that neither Moreno nor the children were there. Castillo subsequently discovered that

Moreno had left the city with the children. 

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 2 of 19
3

 18 U.S.C. § 3181(a) provides, in pertinent part that “[t]he 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.”

4

 See Fn. 1, supra.

3

According to the warrants issued for Moreno’s arrest, Castillo alleges that Moreno told

him in October of 2003 that she wanted to take the children to the United States because she

had married a man she met on the Internet. (Gov’t Ex. 68). Castillo refused permission for

the children to leave the country. Castillo alleges that Moreno then forged his signature and

digital fingerprints on passport applications for the children so that she and the children could

come to the United States to live with her new husband, Ronald Coonley, in Alabama. 

An investigation revealed that passports were issued to L.F.C.M. and M.F.C.M. on

February 17, 2004, and that Moreno and the children flew from Mexico to Atlanta, Georgia

on February 27, 2004. (Gov’t Ex. 60 & 68). Moreno, Coonley and the children presently

reside in Salem, Alabama which is within the Middle District of Alabama.

DISCUSSION

This extradition matter is governed by 18 U.S.C. § 3181.3

 Before issuing a certificate

of extraditability, the court must find that the government has met all the necessary elements

for extradition of Moreno pursuant to 18 U.S.C. § 3184.4

 The United States bears the burden

of establishing: (1) the existence of personal and subject matter jurisdiction; (2) a valid treaty

with Mexico; (3) pending criminal charges in Mexico; (4) extraditable offenses; and (5)

probable cause. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Yapp v. Reno, 26 F.3d

1562, 1565 (11th Cir. 1994). The court will address each element seriatim.

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 3 of 19
4

First, the United States must establish that this court has personal and subject matter

jurisdiction over Moreno and these proceedings. Moreno resides in Salem, Alabama which

is within the Middle District of Alabama. 18 U.S.C. § 3184 confers jurisdiction on the United

States Magistrate Judge to hear this matter pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala.

LR 72.2 under which the United States Magistrate Judge is authorized to conduct all

proceedings in this case and order the entry of the certificate of extraditability. Moreno does

not contest that the court has both personal and subject matter jurisdiction over this matter.

Consequently, the court concludes that the United States has established the requisite

jurisdictional element.

Moreno concedes that there is presently in force a valid treaty between the United

States and Mexico. See Extradition Treaty between the United States and Mexico, May 4,

1978, T.I.A.S. No. 9656, 31 U.S.T. 5059, 1980 WL 309106. Andrew Keller, an AttorneyAdvisor in the Legal Office of the Department of State declared that the Treaty between the

United States and Mexico is in full force and effect. (Gov’t Ex. E). The United States has met

its burden of establishing the existence of a valid treaty with Mexico. 

The third element the United States must establish is the existence of pending criminal

charges against Moreno. The first charge pending against Moreno is trafficking in minors in

violation of Article 366-quáter in relation to Article 366-ter of the Federal Penal Code of

Mexico.

Article 366-Ter – Whoever transports a child under the age of

sixteen, or unlawfully hands over the child to a third person out

of Mexico, for unduly obtaining a profit, commits the offense of

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 4 of 19
5

child trafficking.

The offense mentioned in the foregoing paragraph is committed by:

I. Whoever has the patria potestas or custody, even

though it has not been decided, whenever they physically

transported or handed over said child or granted consent for

doing so;

II. Any relatives in ascending or collateral line, or by

affinity until fourth degree and also any third party without

relationship to the child;

It shall be understood that the persons referred to in the

preceding paragraph are acting unlawfully whenever they know

that:

a). Express consent has not been granted for

transporting or handing over the child by any

person that has the patria potestas or custody of

the child, or

b). The person that has the patria potestas or

custody of the child shall obtain any profit for the

said transporting or handing over. 

Article 366-quáter – The penalties set forth in foregoing article

shall be reduced a half, whenever:

I. The transporting or the handing over of the child is not

made for obtaining an undue profit, or

II. The person to whom the child is handed over intents

to make the child a part of his/her family unit.

The penalties mentioned in this article shall be imposed on the

father or the mother of a child under the age of sixteen that

unlawfully or without consent of whoever has the patria potestas

or custody of the minor, without obtaining an undue profit in

exchange, transports the child out of Mexican territory so as to

change the habitual residence or prevents the mother or father, as

the case may be, from living together with or visiting the child.

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 5 of 19
5

 Although a warrant was sought for Moreno’s arrest on a charge of using a false document, the judge

specifically declined to issue an arrest warrant on that charge. See Gov’t Ex. 68.

6

(Gov’t Ex. 58, Article 366-quáter in relation to Article 366-ter of the Federal Penal Code of

Mexico). The penalties for violating Article 366-Ter include a term of imprisonment between

three and ten years; however, the penalties for violating Article 366-quáter include a term of

imprisonment which is half of the term of imprisonment for violating Article 366-Ter. (Id.).

A warrant for Moreno’s arrest on this charge was issued on September 27, 2004. (Gov’t Ex.

56).

Moreno is also charged with the offense of forgery of a public document under Article

244(I) which prohibits “stamping a false signature, even if the signature is fictitious or if an

original signature is modified.”5

 (Gov’t Ex. 68). The penalties for forgery of a public

document include a term of imprisonment between four and eight years. (Gov’t Ex. 69). A

warrant for Moreno’s arrest on this charge was issued on June 8, 2005. (Gov’t Ex. 68). 

Moreno concedes that there are pending criminal charges against her in Mexico. The

United States has met its burden of establishing the existence of pending criminal charges

against Moreno in Mexico. 

The fourth element the United States must establish is that the Mexican charges against

Moreno constitute extraditable offenses under the Treaty. Article 2 of the Treaty defines

extraditable offenses.

(1) Extradition shall take place, subject to this Treaty, for wilful acts which fall

within any of the clauses of the Appendix and are punishable in accordance

with the laws of both Contracting Parties by deprivation of liberty the

maximum of which shall not be less than one year.

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 6 of 19
7

(2) Extradition shall also be granted for wilful acts which, although not being

included in the Appendix, are punishable, in accordance with the federal laws

of both Contracting Parties, by a deprivation of liberty the maximum of which

shall not be less than one year. 

Extradition Treaty between the United States and Mexico, May 4, 1978, T.I.A.S. No. 9656,

31 U.S.T. 5059, Art.2. 

The United States argues that it is sufficient for the offenses to be listed in the Treaty.

While it is true that the Appendix to the Treaty specifically lists kidnaping, child stealing, and

abduction as well as “[a]n offense against the laws relating to counterfeiting and forgery” as

extraditable offenses, Extradition Treaty, App., # 4 and # 10, it is not sufficient to show that

the offenses are simply listed in the Treaty. The court must look to the conduct described in

the Mexican documents to determine whether the conduct constitutes a “listed” offense. The

United States must establish that the charged offenses in Mexico also constitute crimes in this

country. This rule is referred to as the “dual criminality” requirement. “‘Dual criminality’ is

the rule that the offense for which the foreign state seeks assistance must also constitute a

crime in the requested state.” In re: Commissioner’s Subpoena, 325 F.3d 1287, 1299 (11th Cir.

2003) abrogated on different grounds by In re Clerici, 481 F.3d 1324, 1333 n.12 (11th Cir.

2007). In the alternative, the government argues that the statutes that prohibit parents from

“stealing” their children in the U.S. meet the dual criminality aspect of this factor.

Specifically, the United States contends that “taking a child from a custodial parent, or who

has joint custody, without permission, constitutes an extraditable offense.” Moreno-Vasquez

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 7 of 19
6

 Moreno makes no argument and does not dispute that the forgery of a public document charge

meets the dual criminality requirement and constitutes an extraditable offense under the Treaty.

7

 18 U.S.C. § 1204 provides, in pertinent part, as follows:

(a) Whoever removes a child from the United States, or attempts to do so, or retains a child

(who has been in the United States) outside the United States with intent to obstruct the

lawful exercise of parental rights shall be fined under this title or imprisoned not more than

3 years, or both.

(b) As used in this section – 

(1) the term “child” means a person who has not attained the age of 16

years; and

(2) the term “parental rights”, with respect to a child, means the right to

physical custody of the child--

(A) whether joint or sole (and includes visiting rights); and

(B) whether arising by operation of law, court order, or legally

binding agreement of the parties.

(c) It shall be an affirmative defense under this section that--

(1) the defendant acted within the provisions of a valid court order granting

the defendant legal custody or visitation rights and that order was obtained

pursuant to the Uniform Child Custody Jurisdiction Act or the Uniform

Child Custody Jurisdiction and Enforcement Act and was in effect at the

8

is charged with “trafficking in minors” and forgery of a public document.6 Under Mexican

law, it is a federal crime for a parent to abduct her child and leave the country. “International

parental abduction became a federal crime under Article 366-quáter of the Federal Penal

Code. . . . Under this Article, prosecution must be pursued at the petition of those whose

parental rights (patria potestad), rights of custody, or guardianship have been violated.”

Código Penal Federal, 12 June 2000, Nat’l Ctr. for Missing & Exploited Children, Country

Report, Mexico at 11 (2002). Under the laws of the United States, it is illegal for a parent to

abduct their child “with intent to obstruct the lawful exercise of parental rights.”7

 18 U.S.C.

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 8 of 19
time of the offense;

(2) the defendant was fleeing an incidence or pattern of domestic violence;

or

(3) the defendant had physical custody of the child pursuant to a court order

granting legal custody or visitation rights and failed to return the child as a

result of circumstances beyond the defendant's control, and the defendant

notified or made reasonable attempts to notify the other parent or lawful

custodian of the child of such circumstances within 24 hours after the

visitation period had expired and returned the child as soon as possible.

8

 It is undisputed that the punishments for the charged offenses include terms of imprisonment not

less than one year. See Extradition Treaty, Art.2. 

9

§ 1204 (2003). The international parental abduction statutes of Mexico and the United States

are strikingly similar in relevant part in that both require that the child be taken to interfere

with or deprive a parent of the ability to exercise their parental rights. 

The law does not require that the name by which the crime is described in the

countries shall be the same; nor that the scope of liability shall be coextensive,

or, in other respects, the same in the two countries. It is enough if the particular

act is criminal in both jurisdictions.

Collins v. Loisel, 259 U.S. 309, 312 (1922). The court concludes that the charged offenses

of trafficking in minors and forgery of a public document constitute extraditable offenses

under the Treaty.8

 

The court turns to the final remaining element necessary for extradition – that of

probable cause. The United States must establish probable cause sufficient to certify Moreno

for extradition on each of the two pending charges. An extradition hearing pursuant to § 3184

is “in the nature of a preliminary hearing.” Charlton v. Kelly, 229 U.S. 447 (1913);

Kastnerova v. United States, 365 F.3d 980, 987 (11th Cir. 2004). See also Afanasjev v.

Hurlburt, 418 F.3d 1159, 1164 (11th Cir. 2005); Escobedo v. United States, 623 F.2d 1098,

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 9 of 19
9

 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding

precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on

September 30, 1981.

10

1102 n.5 (5th Cir. 1980) (quoting Gusikoff v. United States, 620 F.2d 459, 462 (5th Cir. 1980)9

(“Hearings held pursuant to Section 3184 are in the nature of a preliminary hearing.”).

Consequently, the court must determine whether there is probable cause to believe that a crime

has been committed and that Moreno committed the offense. While the Treaty defines

probable cause as “evidence sufficient according to the laws of the requested country,” 31

U.S.T. 5059, art. 3, the law is clear that the federal probable cause standard applies at an

extradition hearing. 

[T]he Government d[oes] not have to show actual guilt, only probable cause

that the fugitive is guilty. The magistrate [judge] does not inquire into the guilt

or innocence of the accused; he looks only to see if there is evidence sufficient

to show reasonable ground to believe the accused guilty.

Kastnerova, 365 F.3d at 987; Afanasjev, 418 F.3d at 1164.

Moreover, 18 U.S.C. § 3190 governs the admissibility of evidence offered in support

of or in opposition to extradition at the hearing.

Depositions, warrants, or other papers or copies thereof offered in

evidence upon the hearing of any extradition case shall be received and

admitted as evidence on such hearing for all the purposes of such hearing if

they shall be properly and legally authenticated so as to entitle them to be

received for similar purposes by the tribunals of the foreign country from which

the accused party shall have escaped, and the certificate of the principal

diplomatic or consular officer of the United States resident in such foreign

country shall be proof that the same, so offered, are authenticated in the manner

required. 

18 U.S.C. § 3190. Finally, “[h]earsay . . . is permitted in extradition proceedings.” Escobedo,

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 10 of 19
10 Moreno does not contest her identity.

11

623 F.2d at 1102 n.10. See also, Afanasjev, 418 F.3d at 1165. With these principles of law

in mind, the court now turns to whether there is probable cause to extradite Moreno on the

pending charges. 

Probable Cause Determinations

A. Trafficking in Minors Charge. The United States must establish probable cause

to believe that Moreno has committed the offense of trafficking in minors.10 Pursuant to

Article 366-quáter, the elements of the offense of child trafficking are

(a) That the offender is the minor under the age of sixteen’s father or mother;

(b) That the said minor is transferred unlawfully or without the consent of the

person having the minor’s custody or patria potestas, outside the Mexican

Territory;

(c) Without the intention of obtaining an unlawful gain;

(d) And that the said transfer is for changing his residence or impeding the

mother or the father to cohabit with or visit the minor.

(Gov’t Ex. 56).

In accordance with 18 U.S.C. § 3190, the United States relied on numerous translated

and duly authenticated documents. See Collins, 259 U.S. at 313; Bingham v. Bradley, 241 U.S.

511 (1916). Although Moreno challenged the accuracy of the translations and legibility of the

documents, 

as long as the evidence is authenticated in accordance with § 3190, then [the

district court] would not consider challenges to the reliability of the translations.

We agree with the district court that we can presume that the translations are

correct.

Ntakirutimana v. Reno, 184 F.3d 419, 420-30 (5th Cir. 1999) (footnote omitted).

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 11 of 19
12

The extradition documents in support of the charge of child trafficking were properly

certified on March 1, 2005, by Robyn M. Bishop, the Minister Counselor for Consular Affairs

of the United States of America at Mexico. (Gov’t Ex. C). The extradition documents in

support of the charge of forgery of a public document were properly certified by David T.

Donahue, the Minister Counselor for Consular Affairs of the United States of America at

Mexico. (Gov’t Ex. D). The court’s function “is to determine whether there is any competent

evidence tending to show probable cause. The weight and sufficiency of the evidence is for

the determination of the committing court.” Escobedo, 623 F.2d at 1102. Consequently, the

court concludes that the extradition documents relied upon by the United States are admissible

and can be considered when determining whether Moreno should be extradited. Id. at 1103.

See also Afanasjev v. Hurlburt, 418 F.3d 1159, 1164 (11th Cir. 2005).

The documents demonstrate that the two minor children, L.F.C.M. and M.F.C.M., were

14 and 9 years old, respectively when they left Mexico and traveled to the United States.

(Gov’t Ex. 68). There is no dispute that Moreno did not transfer the children for unlawful

gain. However, by bringing the children to the United States, Moreno changed the children’s

residence and impeded Castillo’s ability to visit with his children.

The crux of the probable cause determination thus rests on whether Castillo’s patria

potestas rights are sufficient to establish that the children were “transferred unlawfully or

without the consent of the person having the minor’s custody or patria potestas, outside the

Mexican Territory.” (Gov’t Ex. 56). The United States argues that Moreno took the children

in violation of the custody agreement and against Castillo’s patria potestas rights. See United

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 12 of 19
13

States’ Supplemental Extradition Br., doc. # 40. 

Moreno, on the other hand, argues that Castillo has access rights pursuant to their

agreement and that his patria potestas rights do not rise to the level of custody rights. See

Resp. Maria del Rosario Moreno-Vazquez a/k/a/ Maria Coonley’s Post-Trial Br., doc. # 39.

Specifically, Moreno argues that the United States cannot establish probable cause because

Moreno had full custody of the children and Castillo’s patria potestas are not the equivalent

of her custody rights.

Clearly, the documentary evidence demonstrates that there is probable cause to believe

that Moreno took the children out of Mexico without Castillo’s permission. The question for

the court, then, is whether Moreno’s actions of removing the children from Mexico impaired

Castillo’s ability to exercise his patria potestos rights by changing the children’s residence or

impeding his ability to visit the children. 

“The concept of patria potestas is derived from Roman law and originally meant

paternal power over the family and household.” Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th

Cir. 2002). See also Whallon v. Lynn, 230 F.3d 450, 456 n.7 (1st Cir. 2000).

Care must be taken to avoid imposing American legal concepts onto another

legal culture. Differently from many laws in this country, Mexican law appears

to embody two concepts of importance here. The first is a preference in divorce

cases towards placing what is called “custody” of a child under age seven with

the mother. . . .

The second concept is embodied in the doctrine of patria potestas, and

represents a more generalized concept of parental authority. Although

historically the doctrine protected the father’s rights as to the child, originally

absolute rights under Roman law, the Baja California Sur Civil Code refers to

it as encompassing the rights of both parents. Article 474 provides generally

that patria potestas, or parental authority, “is understand to mean the

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 13 of 19
11 Although the Third District Judge for Federal Criminal Matters in the Federal District ultimately

determined that he did not have jurisdiction over this matter (see Gov’t Ex. 53), he transferred the case to the

appropriate District Judge in Naucalpan, Mexico who accepted the case. See Gov’t Exs. 53 and 55. On

September 27, 2004, the court issued the arrest warrant for Moreno. (Gov’t Ex. 56). 

14

relationship of rights and obligations that are held reciprocally, on the one hand,

by the father and the mother or in some cases the grandparents and, on the other

hand, the minor children who are not emancipated.” Civil Code, art. 474. The

concept of patria potestas is defined broadly:

Paternal authority is exercised over the person and the property

of the children subject to it. The purpose of its exercise is the

comprehensive physical, mental, moral and social protection of

the minor child, and it includes the obligation for [the child’s]

guardianship and education.

Whallon, 230 F.3d at 456-57 (footnote omitted). 

In the request for a warrant to the Third District Judge for Federal Criminal Matters in

the Federal District, the prosecuting attorney discusses the element of patria potestas.

11

With regard to the NORMATIVE ELEMENTS which must be evaluated in the

offense of CHILD TRAFFICKING, this is firstly the concept of: a child under

sixteen years, that is a person under eighteen years of age; without the

authorization of those exercising patria potestas or resolution by a competent

authority; that is, to have the permission or authorization of the father or mother

or of whomsoever exercises patria potestas in order to be able to leave the

country or change domicile, temporarily or permanently, since without this

element. If the persons mentioned had provided this authorization, the

normative element would not exist; b) patria potestas corresponds to the

groups of rights and obligations established by law with respect to parents,

governing the attentions, government and care of their children; including the

management of their assets, as from conception until they are of legal age or

emancipated; now, this gives rise to the normative-descriptive element

consisting of a resolution by a competent authority, and refers to that authority

possessing faculties to resolve on the residence or guardianship of children

under age, such as, for example, the Judges for Family Matters, and in the

present case no such resolution by a judicial family authority exists where the

mother of the children was authorized to leave the country or change

residences, c) not allowing the father or the mother to have habitual access to

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 14 of 19
12 The Agreement in Family Court specifically placed L.F.C.M. “under the custody of his mother,

Mrs. Maria del Rosario Moreno Vazquez.” (Gov’t Ex. 6, ¶ 2).

15

the child or visit same, representing a condition in order for the behavior

described to be typical, given the requirement of the precept that, in addition to

then agent engaging in the act or actions, subsequently thereto not giving

permission or not permitting the parents of the child to visit to have habitual

access to the children, that in the present ase (sic) the one cannot visit them is

the father. 

(Gov’t Ex. 52).

Moreno concedes that she and Castillo entered into an agreement that placed the

children under her custody.12 More importantly, however, the agreement specifically

addresses Castillo’s patria potestas rights.

FIRST – The patria potestad of our minor son [L.F.C.M.] will be exercised at

all times by his parents, the undersigned Jose Fernando Castillo Tapia and

Maria del Rosario Moreno Vazquez, and will only be lost in the form and terms

established by Law for such purpose. 

(Gov’t Ex. 6, ¶ 1). The agreement also designated Moreno’s home in Mexico as the dwelling

for L.F.C.M. and required Moreno to notify Castillo in writing of “[a]ny change in domicile.”

(Id. at ¶ 4). The United States presented evidence, which Moreno did not dispute, that when

Moreno requested permission to take the children to the United States, Castillo refused. Thus,

the evidence before the court indicates that Moreno did not have Castillo’s express permission

to leave Mexico and change the children’s residences to the United States. Finally, the

agreement permits Castillo daily visitation with his son, weekend visitation and vacations

during the year. (Id. at ¶ 5-6). After they divorced, Moreno and Castillo had their second

child, M.F.C.M., and they applied their custody agreement to her.

Case 3:06-cv-00761-CSC Document 48 Filed 08/22/08 Page 15 of 19
13 Although Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) involved a petition under the

International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq., and the Hague Convention, its

discussion of custody and access rights are instructive.

16

The passport applications also require permission of “the parents or persons exercising

patria potestas or guardianship.” (Gov’t Ex. 28). The passport applications refer to those

persons exercising the broader concept of patria potestas; permission is not limited to those

persons who have the more narrow rights of custody of the minor children.

Article 366-quáter and the judicial documents from Mexico all refer to the “person

having the minor’s custody or patria potestas” when discussing the elements of the offense

of trafficking in minors. Moreno argues that her superior rights of custody trump Castillo’s

patria potestas rights. This argument is not supported by the statutory language which uses

coordinate language in expressing the terms “minor's custody” and “patria potestas.”

Castillo’s patria potestas rights are equally protected by the plain language of Article 366-

quáter in relation to Article 366-ter of the Federal Penal Code of Mexico. 

It is clear that the concept of custody in the United States which often applies to

physical custody is not necessarily the same concept in foreign states. Because custody in

foreign states often entails rights related to the care, education and cultural identity of a child,

“we must . . . not allow our somewhat different American concepts of custody to cloud our

application. . . Specifically, in this case we must think of “rights of custody” as including

“rights relating to the care of the person of the child,” and in particular, “the right to determine

the child’s place of residence.” Furnes v. Reeves, 362 F.2d 702, 711 (11th Cir. 2004).13

The evidence before the court establishes that there is probable cause to believe that

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14 It is important to note that although an arrest warrant against Moreno was sought for the offense

of using a false document, a warrant on that charge was not issued. Moreno is not charged with using false

documents. (Doc. # 8, Ex. D). 

17

Moreno is the mother of the two minor children at issue who were under the age of sixteen at

the time they left Mexico for the United States; that Castillo, the children’s father, who

maintained patria potestas rights, did not consent to the children leaving Mexico; that the

children were not removed for unlawful financial gain; but that Moreno intended to change

the children’s residence which would impede Castillo’s ability to exercise his patria potestas

rights. Accordingly, the court concludes that there is probable cause to believe that the

offense of trafficking in minors has been committed and that Moreno committed it. The court

will grant the first Request for Extradition (doc. # 1) and certify that Maria del Rosario

Moreno-Vazquez is extraditable on that request. 

B. Forgery of a Public Document Charge. The United States filed a second request

for Moreno’s extradition based on a charge of forgery of a public document. (Doc. # 8). For

Moreno to be extradited to answer this charge, the United States must establish probable cause

to believe that Moreno has committed the offense of forgery of a public document. Moreno

is charged with violating Article 244(I) of the Federal Criminal Code which is committed

“[b]y stamping a false signature, even if the signature is fictitious or if an original signature

is modified.” (Doc. # 8, Ex. D). Thus, to demonstrate probable cause on the second charge

of forgery of a public document, the United States must establish that there is reason to believe

that Moreno stamped a false signature on the children’s passport applications.14

The United States argues that because the documents are forged and Moreno used the

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18

documents to bring her children to the United States, she must have forged them. It is

undisputed that Castillo’s signatures on the children’s passport applications were forged as

were his fingerprints. Relying solely on the documentary evidence, the United States contends

that “the documents speak for themselves. In doing so, Moreno-Vasquez had her husband’s

signature and digital fingerprints forged.” The United States’ reliance is misplaced.

In the supporting documentation, the evidence shows that the signatures and

fingerprints purporting to belong to Castillo belonged, in actuality, to Artemio Barrera

Hernandez. (Gov’t Ex. 68). In addition, witnesses positively identified Barrera as the man

who appeared at the local Foreign Affairs Office in Naucalpan to submit passport applications

for the two minor children. (Gov’t Ex. 66 & 68). Critically, however, none of the witnesses

identified Moreno as the woman with him. In fact, the witnesses stated that they did not

“remember well [Moreno’s] physical shape.” (Id.). Accordingly, the court concludes that

while the United States has established probable cause to believe the offense of forgery of a

public document has been committed, the United States has failed to establish probable cause

that Moreno committed the offense. Thus, the second Request for Extradition (doc. # 8) will

be denied. 

CONCLUSION

Although the court is sympathetic to Moreno’s plight, as a matter of law humanitarian

considerations fall within the exclusive realm of the executive branch and are outside the

purview of this court. Escobedo, 623 F.2d at 1107. See also Martin v. Warden, Atlanta Pen,

993 F.2d 824, 830, n.10 (11th Cir. 1993) (“[H]umanitarian considerations are matters properly

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19

reviewed by the Department of State.”) 

Pursuant to 18 U.S.C. § 3184,the court concludes that there is sufficient evidence to

sustain the charge of trafficking in minors in violation of Article 366-quáter in relation to

Article 366-ter of the Federal Penal Code of Mexico. Accordingly, for the reasons as stated,

it is

ORDERED that the first Request for Extradition (doc. # 1)be and is hereby

GRANTED, and the court CERTIFIES that Maria del Rosario Moreno-Vazquez is

extraditable on that request for extradition (doc. # 1) and REFERS this matter to the Secretary

of State for the United States of America for its determination of whether to surrender Moreno

to authorities in Mexico. It is further

ORDERED that the second Request for Extradition (doc. # 8) be and is hereby

DENIED.

A separate certificate of extraditability will issue.

Done this 22nd day of August, 2008.

 /s/Charles S. Coody 

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE

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