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STRENGTHENING THE LONG ARM OF THE LAW:

HOW ARE FUGITIVES AVOIDING EXTRADITION,

AND HOW CAN WE BRING THEM TO JUSTICE?

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE,

DRUG POLICY AND HUMAN RESOURCES

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

OCTOBER 1, 2003

Serial No. 108–128

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

JOHN R. CARTER, Texas

WILLIAM J. JANKLOW, South Dakota

MARSHA BLACKBURN, Tennessee

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

CHRIS BELL, Texas

———

BERNARD SANDERS, Vermont

(Independent)

PETER SIRH, Staff Director

MELISSA WOJCIAK, Deputy Staff Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHILIP M. SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY AND HUMAN RESOURCES

MARK E. SOUDER, Indiana, Chairman

NATHAN DEAL, Georgia

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

DOUG OSE, California

JO ANN DAVIS, Virginia

EDWARD L. SCHROCK, Virginia

JOHN R. CARTER, Texas

MARSHA BLACKBURN, Tennessee

ELIJAH E. CUMMINGS, Maryland

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

LINDA T. SANCHEZ, California

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

CHRIS BELL, Texas

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

J. MARC WHEAT, Staff Director and Chief Counsel

NICHOLAS COLEMAN, Professional Staff Member and Counsel

NICOLE GARRETT, Clerk

TONY HAYWOOD, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on October 1, 2003 ............................................................................ 1

Statement of:

Fox, James, district attorney, San Mateo County, CA, representing the

National District Attorneys Association; Daniel J. Porter, district attorney, Gwinnett Judicial Circuit, Georgia; and Teri March, widow of

Los Angeles County, CA Deputy Sheriff David March .............................. 64

Witten, Samuel, Deputy Legal Advisor, Legal Bureau, U.S. Department

of State; and Bruce Swartz, Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice ................................................... 12

Letters, statements, etc., submitted for the record by:

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 111

Deal, Hon. Nathan, a Representative in Congress from the State of Georgia, prepared statement of ........................................................................... 9

Fox, James, district attorney, San Mateo County, CA, representing the

National District Attorneys Association, prepared statement of .............. 66

March, Teri, widow of Los Angeles County, CA Deputy Sheriff David

March, prepared statement of ...................................................................... 84

Porter, Daniel J., district attorney, Gwinnett Judicial Circuit, Georgia,

prepared statement of ................................................................................... 73

Souder, Hon. Mark E., a Representative in Congress from the State

of Indiana, prepared statement of ............................................................... 4

Swartz, Bruce, Deputy Assistant Attorney General, Criminal Division,

U.S. Department of Justice, prepared statement of ................................... 29

Witten, Samuel, Deputy Legal Advisor, Legal Bureau, U.S. Department

of State, prepared statement of ................................................................... 15

(1)

STRENGTHENING THE LONG ARM OF THE

LAW: HOW ARE FUGITIVES AVOIDING EXTRADITION, AND HOW CAN WE BRING

THEM TO JUSTICE?

WEDNESDAY, OCTOBER 1, 2003

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY AND

HUMAN RESOURCES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:10 a.m., in room

2154, Rayburn House Office Building, Hon. Mark E. Souder (chairman of the subcommittee) presiding.

Present: Representatives Souder, Deal, Ose, Carter, Clay,

Sanchez, Ruppersberger, Norton and Bell.

Staff present: J. Marc Wheat, staff director and chief counsel;

Nicholas Coleman, professional staff member and counsel; John

Stanton, congressional fellow; Nicole Garrett, clerk; Tony Haywood,

minority counsel; and Jean Gosa, minority assistant clerk.

Mr. SOUDER. The hearing will come to order. Good morning, and

thank you for coming.

Today our subcommittee will address the status of the extradition process, an area of growing concern for lawmakers and law

enforcement officials throughout the United States. The extradition

process, which is governed by a series of bilateral treaties between

the United States and various foreign countries, is intended to ensure that criminals cannot escape justice by fleeing from one country to another. Under an extradition treaty, the new host country

will arrest the fugitive and return him to face trial. Recent developments have put strains on the extradition process, however, hindering or sometimes completely impeding the ability of law enforcement to bring criminal fugitives to justice.

The most significant problem with the extradition process today

is the conditions imposed by foreign nations on extradition. This

problem is not new. For many decades now certain nations that

ban the death penalty within their own borders have refused to extradite any criminal who can face the death penalty in the United

States. Other countries refuse to extradite any fugitive who is convicted in absentia. Prosecutors in the United States have generally

dealt with this problem by agreeing to seek life imprisonment instead of the death penalty, or by agreeing to hold a retrial.

In October 2001, however, the Mexican Supreme Court issued a

decision banning the extradition of anyone facing life imprisonment

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without the possibility of parole on the grounds that the Mexican

Constitution gives all criminals the right to be rehabilitated and reintegrated into society. Thus, no matter how heinous the crime or

how dangerous the criminal, Mexico will refuse to extradite anyone

facing life imprisonment, which in most of our States is the minimum punishment for first-degree murder. If Mexican authorities

officially refuse an extradition request, they will then proceed to

prosecute the fugitive under their own law, which often results in

much lesser penalties. American prosecutors thus face a dilemma.

They must either agree to charge a murderer with manslaughter

or another lesser offense that does match the seriousness of the

crime, or they must trust to the Mexican justice system. Many

prosecutors have simply refused to request extradition under such

conditions, preferring to hope that the fugitive will sneak back into

the United States and be apprehended.

The case of Deputy Sheriff David March illustrates this problem.

Deputy March, a 7-year veteran of the Los Angeles County Sheriff’s

Department, was murdered while making a routine traffic stop in

April 2002. His suspected killer, Armando Garcia, a Mexican national and violent drug dealer who had been deported three times

from the United States, immediately fled to Mexico. Mexican authorities have refused to extradite Garcia on the grounds that he

faces, at a minimum, life imprisonment.

The case of Deputy March and others like it has spurred calls

from the administration to put pressure on the Mexican Government to renegotiate its extradition treaty with the United States.

Deputy March’s widow Teri has actively campaigned for justice for

her husband and similar victims of fugitive killers. This is indeed

not an isolated case. The Los Angeles District Attorney’s Office estimates that over 200 murder suspects in Los Angeles County

alone have fled to Mexico. In response, several Members of Congress have offered legislation calling for changes to the existing extradition treaty.

Other issues surrounding the extradition process must also be

examined by Congress. For example, in March 2002, the Justice

Department Inspector General released a report criticizing the

Criminal Division’s Office of International Affairs, the main Justice

Department agency responsible for extradition matters, for its

management of extradition cases. Questions have also been raised

about how vigorously other Federal agencies with potential influence are pursuing extradition cases.

This hearing will address all these difficult issues as well as legislative and other potential solutions. We are pleased to be joined

by representatives of the two Federal agencies primarily responsible for managing the extradition process, the U.S. Department of

Justice and U.S. Department of State. From the Justice Department we welcome Mr. Bruce Swartz, Deputy Assistant Attorney

General at the Criminal Division; and from the State Department

we welcome Mr. Samuel Witten, Deputy Legal Advisor at the Department’s Legal Bureau.

Given the impact that extradition has on local law enforcement

and victims of crime, it is especially important that we hear from

local representatives. Representing local law enforcement officials,

we are pleased to be joined by the Honorable James Fox, District

3

Attorney for San Mateo County, CA, representing the National District Attorney’s Association; and the Honorable Daniel J. Porter,

District Attorney of the Gwinnett Judicial Circuit in Georgia. We

are also especially honored to be joined by Mrs. Teri March, the

widow of Deputy Sheriff March, who has worked so tirelessly to

raise the awareness of this issue and to get justice for her husband.

I thank everyone for taking the time to join us this morning, and

I look forward to hearing your testimony.

[The prepared statement of Hon. Mark E. Souder follows:]

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Mr. SOUDER. I will now yield to our Congresswoman Sanchez for

an opening statement.

Ms. SANCHEZ. I don’t have an opening statement.

Mr. SOUDER. Thank you.

Congressman Deal, our vice chairman of the committee, for an

opening statement.

Mr. DEAL. Thank you, Mr. Chairman, for holding this hearing on

one of the most serious problems facing law enforcement in this

country. Our Nation is one that is built on the rule of law.

Throughout our history, we have generally avoided vigilante justice, mob rule, and the overthrow of government that has plagued

other nations because we’ve maintained a system of criminal justice that, despite its imperfections, has been sustained by the confidence of the American people that their government can maintain

law and order and punish criminal conduct.

Today we will hear from witnesses who will document a serious

flaw in our system. Although the problem of bringing criminals to

justice within our country is an ongoing battle, today we will hear

from prosecuting attorneys and the widow of a slain police officer

about the even greater challenge of bringing a criminal to justice

when they flee our borders and find refuge in another country, especially Mexico.

The problem of extradition is certainly one that involves many

nations, but it is primarily a problem with Mexico, a nation that

has millions of its citizens who are illegally in our country. While

many of us are seriously concerned about Mexico’s encouragement

of actions that will foster more illegal immigration, today we will

focus on the most serious failure of the Mexican Government, its

uncooperative attitude and policies relating to the extradition of individuals who have committed murders, operated major drug activities and other felonious acts within the United States and have

fled to Mexico for safe haven. These are not crimes committed on

our citizens within the borders of Mexico; these are crimes committed in the United States and which should be prosecuted in the

United States.

Today we will hear about restrictions on extradition relating to

treaty agreements and judicial opinions of the Mexican Supreme

Court, but we will also hear about the legal barriers that prevent

the U.S. prosecutors from obtaining justice in some of the most serious criminal cases in our country. Unlike Colombia that expedites

extradition of alleged criminals to the United States for prosecution, Mexico continues to resist such efforts. Colombia has recognized that extradition to the United States is one of the most effective deterrents it possesses in fighting organized drug activities. By

taking the opposite position, Mexico is rapidly becoming a safe

haven for organized crime.

Mexico’s refusal to be a good neighbor in the prosecution of dangerous felons should be the first reason for the United States to resist expanded immigration rules and an open border policy. It is

my opinion that any country that refuses to extradite a criminal

who executes a police officer in the performance of his duties on

American soil does not deserve to be given favorable trading status

or any other position of preference in its dealings with the United

States. In light of Mexico’s change in position that will not allow

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the extradition of anyone facing life in prison without parole, this

administration should immediately renounce the existing extradition treaty and demand that anyone who enters our country and

commits a serious felony will face the same punishment as our own

citizens would face for the same crime. It is a double insult to the

American people for someone to enter our country illegally, kill one

of our citizens, then flee across the border and have his government refuse to allow him to be prosecuted using the excuse that

our courts may impose too harsh a sentence.

Also, it is alarming to learn from the Justice Department’s Inspector General’s report of last year that the Criminal Division’s

Office of International Affairs has not been as vigilant as it should

be in pursuing extradition cases. This must be corrected. I recognize that most nations, including the United States, have reservations about subjecting their citizens to extradition to other countries where the system of justice differs from nation to nation.

However, there is a clear difference between a case of a citizen who

enters another country in a legal status, where his native country

consents to his leaving and the host country consents to his entry

through a visa or other immigration program, and someone who

enters the host country without its consent. Many of the cases that

confront our prosecutors fall in the latter category.

I believe the United States should insist that all extradition treaties distinguish between these categories, and those who have entered another country without the consent of that country should

always be extradited back to face criminal charges and should not

receive the same protection as a citizen who entered legally. This

should apply to citizens of the United States who enter other countries illegally as well as the citizens of other countries who enter

the United States illegally. To do otherwise is to place the country

of which the fugitive is a citizen in the position of ratifying the initial crime of illegal entry and aiding and abetting the alleged criminal in the subsequent crime that was committed in the host country by extending the accused the same protection as other citizens

who travel to other countries in a legal status.

Once again, Mr. Chairman, I thank you for holding this hearing,

and I look forward to the testimony and the proposed solutions to

this intolerable state of affairs.

[The prepared statement of Hon. Nathan Deal follows:]

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Mr. SOUDER. Congressman Ose, do you have an opening statement?

Congressman Carter, any opening comments?

Mr. CARTER. No.

Mr. SOUDER. I would like to ask unanimous consent that all

Members have 5 legislative days to submit written statements and

questions for the hearing record, and any answers to written questions provided by the witnesses also be included in the record.

Without objection, it is so ordered.

I also ask unanimous consent that all exhibits, documents, and

other materials referred to by Members and the witnesses may be

included in the hearing record; that all Members be permitted to

revise and extend their remarks. Without objection, it is so ordered.

Our first panel today is from the administration. We welcome

Mr. Bruce Swartz of the Justice Department, Mr. Samuel Witten

of the Department of State.

It is our standard practice to ask witnesses to testify under oath.

If you will stand and raise your right hands, I will administer the

oath to you.

[Witnesses sworn.]

Mr. SOUDER. Let the record show that both witnesses responded

in the affirmative.

Thank you both for coming today. And, Mr. Swartz, I think, if

you will start, and you are recognized for 5 minutes.

Mr. SWARTZ. Mr. Chairman, with your permission, if Mr. Witten

could begin by discussing the overall extradition program, and I

will return to address the problem of Mexico in particular.

Mr. SOUDER. OK. We will recognize Mr. Witten first.

STATEMENTS OF SAMUEL WITTEN, DEPUTY LEGAL ADVISOR,

LEGAL BUREAU, U.S. DEPARTMENT OF STATE; AND BRUCE

SWARTZ, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

Mr. WITTEN. Thank you, Mr. Chairman. Mr. Chairman, and

members of the committee, I am pleased to appear before you today

to testify on the subject of strengthening the long arm of the law:

How are fugitives avoiding extradition, and how can we bring them

to justice? With your permission, I will submit my prepared testimony for the record and summarize the testimony here.

The Department of State appreciates this opportunity to discuss

international extradition. The growth in transborder criminal activity, especially terrorism, violent crime, drug trafficking, and the

laundering of proceeds of organized crime, has confirmed the need

for increased international law enforcement cooperation, including

the essential tool of extradition. In my testimony I will highlight

our efforts to modernize our extradition treaty relationships and

highlight the key problems we face internationally. Mr. Swartz will

discuss in detail our recent interactions with Mexico, which I understand is of particular interest to the committee.

Although nations have no general obligation in international law

to extradite, the practice, of course, has become widespread, and

there now exist hundreds of treaties around the world relating to

international extradition. Because of the many unique national

legal systems around the world, no single set of rules governs the

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process of international extradition, and the conditions under

which extraditions are granted and may be granted vary among

countries.

The international extradition process inherently involves the

laws of two countries, as the opening statements have reflected, the

country requesting extradition and the country where the fugitive

is located. The process of extradition can be challenging, time-consuming, and sometimes frustrating. Most extraditions to and from

the United States take place pursuant to bilateral extradition treaties. In recent years, the State and Justice Departments have made

a concerted effort to expand and modernize our extradition treaties

in order to make the extradition process work more efficiently and

effectively. In many cases we’ve replaced older treaties with new,

updated treaties, with improvements such as replacing the list of

extraditable offenses with a more comprehensive regime of dual

criminality. We have also entered into new extradition treaties

with partners such as Philippines and South Korea.

Since 1990, we’ve negotiated and signed nearly 30 new extradition treaties that have improved this framework. Improvements

include, where possible, providing for the extradition of nationals,

smoothing the procedures for extradition, clarifying the standard of

proof in extradition, specifying applicable statutes of limitations,

and limiting the political offense exception to extradition, and addressing other issues.

At this point we have extradition relationships with well over

100 countries around the world. Pursuant to this network of treaties, our requests have resulted in return to the United States for

trial and punishment of persons charged with or convicted of the

widest variety of crimes, murder, terrorism, white collar crimes,

narcotics trafficking, and others. Some of our recent extraditions

have included the extradition from France of James Kopp, who

murdered abortion doctor Bernard Slepian in Buffalo, NY, and was

convicted of murder this year in New York; Ira Einhorn, who murdered his girlfriend in Philadelphia and was returned from France

and convicted last year for murder in Philadelphia; and, from Guatemala, of Milton Napoleon Marin Castillo, who was charged with

committing a double murder in Ann Arbor, MI.

While there have been successes, the existence of an extradition

treaty, even a modern one, does not ensure that all will always go

well. In fact, because of differences in legal systems, the extradition

process is neither simple nor without frequent delays. Mr. Swartz

will go into detail about the assurances question that the committee has raised; I will just mention briefly in the time allotted several issues that we are also working on. One is the issue of extradition of nationals.

The United States asks all of our treaty partners to extradite

their nationals to the United States for crime—or for punishment

as we would extradite our nationals in appropriate circumstances

to other governments. This issue is a complicated one for many

countries, and we have made some progress, but not as much as

we would like. A number of our treaty partners in Europe and

Latin America still cannot extradite nationals. Our major successes

in the most recent years have been with South America. Our recent

14

treaties with Argentina, Bolivia, Paraguay, and Peru all provide for

extradition of nationals.

We have made other gains in terms of working with foreign

countries on their domestic laws, permitting them to extradite

where the discretion is given to them. The Dominican Republic is

one example. They have repealed their law prohibiting extradition

of nationals, permitting extradition to the United States of Dominican nationals on such offenses as murder and narcotics trafficking.

After many years of discussion, both Mexico and Colombia have

been extraditing nationals to the United States, Mexico under the

U.S./Mexico bilateral treaty, and Colombia under the authority of

its domestic law.

And another continuing problem alluded to by the committee

with which Mr. Swartz will deal with is death penalty and life imprisonment assurances. This has become of particular concern, as

you noted, with Mexico. The Mexican Supreme Court ruling of October 2001 on life imprisonment has presented major challenges to

the United States and also to Mexican officials. I can assure the

committee that this is a major concern to the State Department at

the highest levels. We continue to strongly believe and communicated firmly to the Mexican Government that the Mexican Supreme Court opinion should be revisited so that our extradition relationship is not subject to this additional burden. Both the State

Department and the Justice Department, including the Attorney

General and Secretary Powell, have engaged the Mexican Government on this issue. We continue to press for the Mexican Government to seek the reversal of this decision and, at a minimum, reduce its adverse impact for as long as it is in effect.

In summary, Mr. Chairman, we have had some successes in this

area. We face many challenges. Needless to say, the system of

international extradition would work more effectively for the

United States if all nations had the same Constitution, laws and

policies that we do. Of course, this is not the case, and because this

is not the case, our task to which we are fully committed is to

make the process work as smoothly and as efficiently as possible.

We appreciate the committee’s interest in these important issues,

and I will be happy to address any questions the committee may

have. Thank you, sir.

Mr. SOUDER. Thank you for your testimony.

[The prepared statement of Mr. Witten follows:]

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Mr. SOUDER. Mr. Swartz.

Mr. SWARTZ. Thank you, Mr. Chairman.

Mr. Chairman, members of the subcommittee, thank you for the

opportunity to discuss with you today the important issue of the

obstacles we face to our extradition practices in the United States.

Mr. WITTEN. Mr. Chairman, is his mic on?

Mr. SWARTZ. Thank you, Mr. Chairman. As I said at the outset,

let me thank you again for the opportunity to discuss this important issue.

The Department of Justice, along with the Department of State

is committed, fully committed to the return to the United States of

every fugitive who has broken the laws of the United States. That

is true regardless of whether or not the offense is a Federal offense,

a State offense or a local offense. But, Mr. Chairman, as you and

other members of the subcommittee have noted, and as my colleague from the State Department has also noted, we do face serious obstacles to extradition in many circumstances. Two of those

obstacles were mentioned in the opening statements of the committee, the death penalty and life imprisonment.

As the subcommittee is aware, many nations throughout the

world now forbid the death penalty. And, again, Mr. Chairman, as

you pointed out, that is a matter that we have had to deal with

for some period of time in our extradition practice. We have over

time evolved a process for dealing with that issue. Our extradition

treaties almost invariably in cases of countries that forbid the

death penalty do not bar extradition in capital cases, but rather

permit the country from which extradition is being sought to demand assurances that the death penalty will not be imposed, or,

if it is imposed, will not be executed.

When the United States receives such a request for assurances,

we coordinate closely with the prosecuting authorities, State or

Federal, to determine whether they are willing to grant such assurances.

While this process is frustrating, it reflects not only the increasing trend among countries toward the abolition of the death penalty as a sanction under their domestic law, but the extent to

which those abolitionist views have been extended either as a matter of law or of policy to refusing to take any action, including

granting extradition that could still facilitate the imposition of the

death penalty by another country.

The death penalty assurance regime thus for many years has

provided a mechanism for reaching some accommodation of widely

divergent national views on capital punishment, while permitting

extradition and trial of accused murderers to proceed, albeit at the

cost of sacrificing the maximum punishment for such crimes.

But while over the course of years we have been able to work

with the regime of the death penalty, we now face a disturbing

growth in demands for similar assurances with respect to life imprisonment or a maximum term of years of imprisonment. Some

countries are now refusing to extradite fugitives absent assurances

from the United States that they will not face life imprisonment or

in some cases even some other maximum term of years deemed inappropriately lengthy. As has been discussed, Mexico, of course, reVerDate 11-MAY-2000 10:37 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 D:\DOCS\92899.TXT HGOVREF1 PsN: HGOVREF1
27

quires such an assurance as a result of a decision of the Supreme

Court in Mexico.

But before turning to Mexico, I must note that there are other

countries who have sought assurances as to sentences of imprisonment, although for a variety of reasons that we will discuss today,

the problem in Mexico is a more severe one.

Colombia, which as has been noted already this morning is one

of our best extradition partners, seeks an assurance as well regarding life sentences. But we have been able to arrange to give assurances that have proven workable in terms of the nature of the

charges that are frequently presented in Colombia cases. Spain and

Venezuela have also sought assurances as to nonimposition of life

imprisonment. And Costa Rica has sought assurances that neither

life nor a sentence in excess of 50 years will be imposed.

I should add parenthetically, it is not only with regard to the

United States that such assurances have been requested. France,

for instance, has received in the past requests for imprisonment

guarantees from Portugal in a case involving a serious criminal.

These developments are of great concern to the Department of

Justice as well as to the Department of State. We believe for international extradition to work, there must be a certain degree of deference to the criminal justice systems and the punishments of the

country seeking return of a fugitive. From my perspective, to the

extent that countries’ due process guarantees are deemed insufficient, the solution is not to enter into an extradition treaty; rather

than to try to interpret that treaty in a way that prohibits, in essence, the return of a fugitive.

But, as we have encountered with Mexico, in some circumstances

the issue is presented not by our executive branch partner, but by

the judiciary in other countries. As the subcommittee is aware, in

October 2001, a decision of the Mexican Supreme Court concluded

that life assurances would be requested—life imprisonment assurances would be requested with regard to extradition. This has to

be seen, of course, in terms of our larger extradition relationship

with Mexico, which has included increasing number of extraditions

in the past years, including extraditions of nationals for some serious crimes. In addition, the total number of fugitives returned by

Mexico to the United States well exceeds the total number of extraditions because, particularly in recent years, Mexico has frequently

exercised its authority under its immigration laws to deport American citizen fugitives who are in Mexico illegally.

For example, the FBI and the U.S. Marshal Service at our embassy report a total of 57 fugitives deported to the United States

to date in fiscal year 2003. Among those deported were Andrew

Luster, the Max Factor perfume heir and convicted serial rapist;

Ronald Samuels, who is alleged to have hired three separate killers

to murder his ex-wife, leaving the victim a paraplegic; and William

Edminston, wanted for a $25 million bankruptcy fraud.

Also on the positive side, our law enforcement agencies have

been able to work more closely with their Mexican counterparts, including on fugitive cases. Indeed, our ability to track fugitives,

which is the prerequisite for seeking any return, has been significantly increased thanks to the Congress’s approval in February

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2003 for the establishment of a field office for the U.S. Marshal Office in Mexico City.

But despite these positive developments, the fact remains that

the Mexican Supreme Court’s October 2001 decision barring extradition in life sentences cases has constituted a serious setback to

our bilateral extradition treaty relationship. The court, notwithstanding the arguments of the Mexican Government to the contrary, ruled that extradition of a person from Mexico who faced life

imprisonment would violate the Mexican Constitution’s barring

cruel and unusual punishment. The result has been severe. Since

October 2001, extradition has been denied in 19 cases in whole or

in part because of our inability to provide assurances. But the impact goes beyond the number of cases, since these are some of the

most serious cases that we face.

Finally, even where prosecutors may believe that limiting the

availability of a life sentence is worth the opportunity to bring a

defendant to trial, providing guarantees may prove difficult in the

context of life sentences in a way that is not the case in death penalty situations. As my colleague Mr. Witten has pointed out, both

the State Department and the Justice Department up to and including the Attorney General and Secretary of State have repeatedly engaged the Mexican Government on this issue. We have

made sustained and continuous efforts to have the Mexicans seek

the reversal of this decision or, at a minimum, reverse its adverse

effects. We understand that the Mexican Ministry of Foreign Relations and the Mexican Attorney General’s Office have filed a petition with their Supreme Court seeking reconsideration of the October 2001 decision. We will continue to press on this issue.

At the same time, as we have noted already, this is not simply

a question of political will on the part of the executive branch of

the Mexican Government. Our extradition relationships, unlike the

other aspects of our law enforcement relationships, are not simply

executive to executive. Extradition, because in almost every case it

involves judicial involvement, also involves an independent branch

of government. This complicates tremendously our relations not

only with Mexico on extradition, but other countries as well.

Notwithstanding this, we remain committed to push forward on

this issue, to work with this committee, to work with Congress generally, and to attempt to find solutions for this. As my colleague

Mr. Witten noted, Ira Einhorn was returned to the United States

after 20 years of efforts on the part of the Office of International

Affairs of the Department of Justice and our colleagues in law enforcement. It is exactly that commitment and dedication that we

bring to every extradition case, and we will continue to do so.

Thank you again for your time. I look forward to answering any

questions.

[The prepared statement of Mr. Swartz follows:]

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Mr. SOUDER. I would like to ask just a couple of basic questions

before we get into some of the meat of the questioning. One that

I am a little confused about, I just want to clarify—it could be relatively short answers; either of you can respond. When you say life

imprisonment, some of these countries were 50 years, 30 years,

Venezuela was 30, Portugal 20. Is that first sentence, or is that

combined? For example, aggregate.

Mr. SWARTZ. Mr. Chairman, as to some of those countries, that

is the aggregate sentence. That is, that person cannot be sentenced

beyond that term of years.

Mr. SOUDER. And do the extradition treaties vary by, for example, if it was a U.S. citizen hiding out there like Einhorn? And

what if they had been hiding—first off, if it’s a U.S. citizen that

flees across the border—let me give you a couple examples. A citizen flees across the border; clearly, a U.S. citizen only. A U.S. citizen flees across the border, stays in, say, France for an extended

period of time, gets citizenship there, becomes dual even though

the reason they became dual is they fled the United States. A third

would be an illegal resident in America who therefore is a national

of another country who commits a crime here, say a murder, and

flees back to, say, Mexico or Colombia. A fourth would be what

many people are, are dual nationals; in other words, they could be

a citizen in the United States and a citizen of Venezuela, of Colombia, of Mexico. Could you kind of go through a little bit how the

extradition treaties vary in those different classes?

Mr. WITTEN. Mr. Chairman, our treaties typically don’t distinguish between the responsibilities of the state with respect to extradition of nationals except insofar as some of our treaties do have

language that permit the executive authority of the requested

state—that is, the state where the fugitive is located—not to extradite its nationals. In some cases, the language varies, so it’s more

or less discretionary on the part of the request of state; in some

cases it’s more mandatory on the government than not.

Where the nationality does become very relevant would be, for

example, Mr. Swartz mentioned some of the deportations. Extradition is obviously very important, and it’s a way that we get lots

of fugitives from countries around the world, but quite a few countries do have flexible immigration statutes. So Mexico, for example,

was able to send Mr. Luster back over the last several months to

the United States, not through a formal extradition process involving judicial challenges and appeals and so forth, but through their

immigration process. That’s one way that the treaties were distinguished.

You gave the example, Mr. Chairman, of a fugitive fleeing one

country, becoming a national of the other. I think the extent to

which that country would view that person as its national would

probably vary. If you will remember, in the Scheinbein case—this

is the famous case several years ago where the fugitive left Montgomery County, MD and went to Israel—there was extensive litigation within the Israeli judicial system about whether at the time

the murder was committed Mr. Scheinbein was a national of Israel.

And at our request, the Israeli Government litigated affirmatively

that said that he was not entitled to the protection of Israel’s nationality law. And in a split decision, the Israeli Supreme Court

47

ruled that there was sufficient contacts with Israel to permit the

Israeli Government—or to require the Israeli Government to withhold extradition.

So it becomes a very case-by-case basis, depending on the national laws of the country involved and what other options might

be available by way of working outside of the extradition process.

Mr. SOUDER. Mr. Swartz, did you want to comment?

Mr. SWARTZ. I would add simply that, Mr. Chairman, under some

circumstances, regardless of the nationality of the fugitive sought,

the country may require the same type of assurances before the individual is returned. Einhorn would be an example of an American

citizen as to whom the death penalty assurances were sought.

Mr. SOUDER. From my visits in Central and South America, it

seems to me, though, the intensity is a lot greater on nationals.

Mr. WITTEN. The issue of extradition of nationals, this hemisphere is split. In South America, there are several countries that

have abandoned the protection of nationals that we have mentioned, Peru, in my testimony and some—Peru and Paraguay, for

example. In some cases in Central America, typically nationals are

not extradited under the domestic Constitutions or laws of the respective countries. Mexico, as we mentioned, does extradite its nationals. Dominican Republic does. In Europe, typically the countries—civil law countries do not extradite their nationals.

Mr. SOUDER. I’m going to yield, if it’s OK, to Ms. Norton next,

because she had a time problem.

Ms. NORTON. I want to thank Ms. Sanchez for allowing me to go

out of turn. I’m ranking member of a committee that will be meeting shortly.

I have some questions particularly involving the complications

here between international law and criminal law, and I understand

the difficulties you have.

Victims here want justice. I am just amazed at the Einhorn case

and how long it took to get the kind of justice, always relative in

international terms, it seems to me you could have gotten 20 years

ago.

Let me ask this question. Our criminal laws are particularly

harsh when measured by other democratic countries. You say many

countries don’t have the death penalty. Most countries don’t have

the death penalty. I do understand that we are negotiating against

a world consensus on issues like that. I’m puzzled by your notion,

one of you talked about the, ‘‘inability to provide assurances.’’ Revisit the Mexican Supreme Court decision, we would like them to

revisit that decision. You know, I try to think we are dealing with

sovereign nations. Hey, revisit the Supreme Court decision of the

United States. I tell you one thing, there are a number of Supreme

Court decisions of the United States I would like to see revisited.

And when my country in response to another sovereign nation asks

that, then I will understand how reciprocity works here, because I

don’t see reciprocity here.

We are dealing in other countries with things that are sacrosanct

to us, their Constitution, where you know good and well there is

no ability on the part of the Supreme Court or any other court to

change what the law requires. We are not dealing with legislative

changes. We are dealing with sovereign nations which have indeVerDate 11-MAY-2000 10:37 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 D:\DOCS\92899.TXT HGOVREF1 PsN: HGOVREF1
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pendent judiciaries, which are something we prize more than we

prize anything else in our Constitutional system. We are dealing

with publics who feel as strongly about their sanctions as we do

about ours; for example, about the death penalty, to take an example.

Now, let me ask you a question based on a real case. The

Einhorn case, and the notion that we kept that family waiting almost a quarter of a century is outrageous. And why did we keep

them waiting? Because in a case where it was as almost as clear

as any case you have seen that this man was guilty, apparently we

were unwilling to negotiate the question of the death penalty.

What happened finally? We finally did negotiate that question;

Einhorn came back here; he’s convicted.

I don’t know if these decisions are made by individual U.S. Attorneys, the main Justice gets into it, if there are negotiations between our State Department and our main Justice, but I would like

some insight into the process you go through. I’d particularly like

to know, if you are seeking justice for victims here, why you don’t

negotiate with sovereign nations knowing full well in many of these

cases that there are not changes they can make any more than

there are changes you can make in our own country; why we are

insistent, for example, in death penalty cases that, I’m sorry even

in the Einhorn case, we are going to keep you waiting for two decades. Why not simply negotiate, bring back, get some measure of

justice for these victims? And what is the process you use, and why

does it take so long, particularly when you fold, as you ultimately

did in the Einhorn case?

Mr. SWARTZ. Thank you.

The issues that you have raised do go to the heart of the problems we face in this regard. As you note, we are dealing with sovereign nations, and frequently, as I noted in my opening statement,

with the judicial systems of sovereign nations rather than the executive branch. Notwithstanding that, we have found over the years

that by continuous discussion with the executive branch of other

countries, Mexico being one, it is possible to present, not in a way

that suggests that they have to adopt our system, but in a way that

suggests that there are things to be learned from our system, approaches that we believe are appropriate, including, as an example

that my colleague noted, the extradition of nationals, an issue that

we have pressed repeatedly in our treaties, and in some cases we

have led other countries to change their Constitutions.

Ms. NORTON. Did you really think in the Einhorn case that his

open and notorious living in France that you were going to be able

to get France to do something about the death penalty?

Mr. SWARTZ. No. In the Einhorn case, as you note, there was extensive delay. Part of that delay, of course, was simply locating Mr.

Einhorn. He had been successfully—he fled apprehension and had

evaded our detection. When he was located in France in 1997, the

issue was not simply the one of the death penalty, but, as you recall, the trial in absentia. And as a result, there needed to be legislation in Pennsylvania that made it possible for him to be retried.

That was the critical issue.

As to the broader question you raised, and a very serious one,

as to how the decisions are made as to whether or not assurances

49

should be given, that is a matter that is primarily in the hands of

the local prosecutors or the Federal prosecutors as the case may be

to consider what the various options are.

Ms. NORTON. Is it the local U.S. Attorney or is it main Justice?

Mr. SWARTZ. Well, we certainly consult in the case of Federal

cases with the U.S. Attorney as to the various options that are

available, and we provide, again, the same advisory service for the

local and State prosecutors that face this issue. In the final analysis, the decision has to be made, unless it’s a case, of course, being

prosecuted by the main Justice Department, as to a weighing up

of these factors. Usually we are able to reach a common view. But,

as you say, in some circumstances, certainly in the death penalty

context, it is well recognized now that in most cases we will have

to give a death penalty assurance if we hope to have the individual

extradited. That does not rule out the possibility that we might be

able to apprehend the individual in another country or have the individual deported. So there are factors to be weighed.

Ms. NORTON. Thank you, Mr. Chairman.

Mr. SOUDER. And I think it’s important to point out for the

record here, we are not talking about changing the laws of other

countries in their countries; we are talking about whether American law can be enforced—whether American citizens are going to

be subject to different laws of the United States than those who

have fled our country and noncitizens being—having the same laws

applied to them. And it’s a very difficult international question, but

it’s a question of whose sovereignty applies when it happens on

your soil.

Judge Carter.

Mr. CARTER. Thank you, Mr. Chairman. I have a limited amount

of experience with Mexican justice, having gone down in either

1978 or 1979 to try to get two U.S. citizens out of a Mexican jail

in Puerto Vallarta, Mexico. The jail clothes that they wore in that

jail were their underwear, the prison cell was a courtyard the size

of this room with an open sewer in the middle, and the bath was

a fire hose that was squirted on them once a day. And so I can understand why they would think that 50 years in prison would be

cruel and unusual punishment. We really felt like 30 days in that

jail was cruel and unusual punishment.

There is a difference. Mexico, for instance, does not have habeas

corpus rules. You can be held indefinitely in Mexico prisons without the right of talking to counsel, nor without any right to bond.

So to compare American justice with Mexican justice is a strange

comparison, in my opinion. And I personally experienced and witnessed that, and I can tell you that that’s cruel and unusual punishment.

And as we negotiate, does anyone ever negotiate in light of our

prison standards of our United States? When we talk to these folks

about their policies on extradition, do we also present to them our

prison standards? Because I’m fairly confident that our prison

standards are at least better than any in the Central and South

America, certainly equal to those that are in Europe. Is that ever

any part of the negotiation process when we are looking at these

things?

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Mr. WITTEN. In the course of negotiating an extradition treaty,

we would have a general discussion of all aspects of the legal, judicial, penal systems. The issue of the conditions of confinement in

another country would come up in a particular context I should

highlight for you.

We have noted that we have 100 and some extradition treaties

at this point. There are a number of countries with which we don’t

have extradition treaties because these are reciprocal treaties, and

they would require us to extradite into a foreign government’s judicial and penal system. In some cases we haven’t negotiated a treaty

just because in the triage of things it’s more important to update

the U.K. Treaty or Canada treaty where there is lots and lots of

fugitive traffic. The conditions of confinement could certainly be a

factor and have been a factor in some cases where we have considered whether we are comfortable entering into an extradition treaty with a foreign country.

When we enter into an extradition treaty with a country that has

prison conditions that aren’t as up to the U.S. standards, which as

you indicate would be common, the treaty itself wouldn’t contain

language on that because it’s not a framework to dictate within the

context of the treaty what the judicial system, the penal system

would be, but certainly it’s a part of the general discussion. And

in cases where we have worked affirmatively with other countries

to upgrade their legal-judicial-penal systems, it certainly would be

a part of the bigger picture.

Mr. SWARTZ. If I might add as well, in this particular case involving Mexico and the Supreme Court’s decision, the Mexicans’ report

relied not on our prison conditions, but rather on the notion that

a life sentence was impermissible in any set of circumstances since

it allegedly did not recognize the possibility of rehabilitation. For

that reason, we have been able, working with the Mexican Government, to establish that in cases where we can establish that parole

is a possibility even under life sentence circumstances, we have

been able to secure extradition. But I should stress that our Mexican executive branch counterparts have not suggested that this has

anything to do with our prison conditions and, indeed, argued

strongly against the decision of the Mexican Supreme Court.

Mr. CARTER. And it is the—only the life without parole situation

you are talking about. For instance, in Texas a life sentence or any

amount of sentence above 60 years is 60 years for the basis of parole. And so the ploy of the prosecutors is, don’t give him life, give

them 60 years, which is life. It’s a lack of parole that’s the issue.

Mr. SWARTZ. And, in fact, we have been able under some circumstances such as that to have been able to secure extradition,

formalistic as it may sound. Even lengthy terms of 60 years, we believe, are permissible and would be a basis for extradition. The

problem we face is that the sentencing structure of many States in

particular require either life imprisonment or death as the punishment for particularly serious crimes. So with that structure in

place, and without a parole system in place, and the Federal Government no longer has a parole system as well, we don’t have the

flexibility that might be in place in Texas or other States.

Mr. CARTER. I know my time has expired, but may I ask one

more question, Mr. Chairman?

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Mr. SOUDER. Yes. Go ahead.

Mr. CARTER. Do you request that they be held by Mexico, for instance, until the process of extradition is completed; in other words,

be incarcerated until they have completed the extradition process?

Is that request routinely made?

Mr. WITTEN. Yes, sir.

Mr. CARTER. Then it would be cruel and unusual punishment

just to spread out the hearing, I promise you. Thank you.

Mr. SOUDER. Mr. Ruppersberger.

Mr. RUPPERSBERGER. First, a couple things. The issue really, the

biggest problem we have, I think, basically from the testimony is

with Mexico. And it seems to me that it’s the issue of their Supreme Court, and their Supreme Court is overriding anything that

is being done in the legislative or with the administration. Are we

doing anything—maybe more from a State Department point of

view. What are we doing to try to overcome that? Are we getting

anywhere? What tactics are we using? Do we have any leverage at

all with respect to that issue?

Mr. WITTEN. Mr. Swartz will supplement, but the United States

is working in closely with the executive branch. The executive

branch of the Government of Mexico would like to see this decision

reconsidered. As we understand it, the equivalent of the Justice

Department of Mexico has filed with the Supreme Court a formal

request that this decision, which was an interpretation of the Constitution, be revisited. So, yes, we are working closely with them.

And the State Department and Secretary Powell has raised this

issue. Our Ambassador to Mexico, Ambassador Garza, has raised

it repeatedly. And Mr. Swartz will indicate that the Justice Department is not only raising it at the Attorney General level, but actually working hand in hand with the Mexicans in connection with

revisiting this.

Mr. SWARTZ. And in that regard, thanks again to the funding

that Congress has provided, we do have a Federal prosecutor that

works out of the U.S. Embassy in Mexico City that has been working on this issue. In addition to seeking rehearing, we, as I noted,

have tried to think of ways in which we can deal with this issue

insofar as the Court opinion remains as it now stands, including

dealing with the issue of parole, making that point that parole is

a sufficient basis even where a life sentence is imposed, and working with their foreign ministry which controls the extradition process in certain respects to ensure that courts, lower Mexican courts,

do not invoke this principle in inappropriate cases.

Mr. RUPPERSBERGER. What’s the history of that Supreme Court?

Is it just traditionalist? Has it any ties to unfavorable individuals?

What’s the background? And we can talk about this all the time.

Are the courts pretty strong in their positions? Where are we with

respect to that? Or do you not want to get into that, probably?

Mr. WITTEN. Mr. Ruppersberger, we don’t have that kind of detailed information about the makeup of the individual judges on

the Supreme Court. We do know that this decision was not anticipated by the Mexican Government when it was reached. We know

that they are working closely with us to try to have it revisited, but

we don’t have any basis to make any further judgments about the

particular judges involved and so forth.

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Mr. SWARTZ. I should add as well that the Mexican Supreme

Court, in a decision favorable to the United States in January

2001, shortly before the decision we’ve talked about here, made

clear that nationals, citizens of Mexico, could be extradited to the

United States, clarifying an issue that had blocked some of our

prior extraditions. So it has been a mixed series of results from the

Mexican Supreme Court.

Mr. RUPPERSBERGER. Other than Mexico, what other countries do

we have issues with? Are there any other countries that have this

same requirement as far as life imprisonment or death penalty?

Mr. WITTEN. Yes. Mr. Ruppersberger, there have been quite a

few cases, particularly in Europe, France, Germany, in other countries that have abolished the death penalty domestically. But also,

their judiciaries or other appropriate authorities have interpreted

their Constitutions or other fundamental law as precluding the

ability of their executive branches to extradite to a system where

capital punishment is possible.

Mr. RUPPERSBERGER. We are in a new era; and not only do we

have a lot of issues with respect to drugs, but also with respect to

terrorists. So it seems to me that there is going to be a lot of activity in this regard. What about some of the countries where we

might have issues with respect to terrorism? Are there any countries now that are out there where we might have some problems

you could address?

Mr. SWARTZ. In terms of the death penalty, that issue will remain even with terrorism cases. We have certainly seen in occasions that we will be required to give death penalty assurances

even in terrorism cases. So that is a continuing issue.

With regard to life imprisonment assurances, while we have seen

that, not simply from Mexico, but, as I noted in my opening statement—but from other countries such as Colombia, Venezuela,

Spain, the issue has not come to the fore so much in those countries simply because of the volume of Mexican cases and the proximity to the border between the United States and Mexico.

Mr. RUPPERSBERGER. OK.

Mr. SOUDER. Will you provide the committee with a list of countries and number of pending cases that are stalled, not pending

cases that are moving through, so we can get some kind of scale

of which countries?

And then you said in Colombia, I believe, that they are looking

at making some changes in their Constitution?

Mr. WITTEN. I can’t hear you.

Mr. SOUDER. That in the case of Colombia, you said they are

looking at a Constitutional change there, so you could note that.

But if you could give us like with Mexico, Spain, Venezuela, how

many cases of extradition are stalled, not how many do you have

out there that are working their way through a normal process.

Mr. SWARTZ. Mr. Chairman, certainly——

Mr. SOUDER. And you can submit that for the written record.

Mr. SWARTZ. Yes. It was with particular focus on countries in

which there have been assurances requested with regard to life imprisonment, or in terms of years?

Mr. SOUDER. Extradition requests that are stalled. In other

words, if they are in the process, and they are moving through on

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a normal basis, we don’t need to know how many extradition requests we have outstanding. And then we can zero in on how much

of this is Mexico, how much of it is other places, what other countries there are. You have hit the high ones here today, I assume.

Mr. SWARTZ. Certainly. We will certainly attempt to do that.

One of the issues, of course, in terms of stalling is, as the subcommittee is well aware—is that the judicial process themselves oftentimes permit a defendant in many countries, and sadly to say

in the United States as well, to delay his or her execution.

Mr. SOUDER. By stall, I should say policy stalling as opposed to—

in other words, not something that is playing out its normal course

as anything would play.

Mr. Deal.

Mr. DEAL. Thank you, Mr. Chairman.

I would like to ask at the outset, in the 100 or so treaties that

we have negotiated with other countries, does the United States

put a reservation in those treaties that we will not extradite U.S.

citizens back to another country under any—or do we put any conditions on that?

Mr. WITTEN. The United States has, as a matter of policy

through its history, extradited U.S. nationals to other governments,

and our treaties come in several varieties on the extradition of national points. One of them would be that the executive branch of

the requested state may in its discretion deny extradition if required by its laws to do so, and that would be a typical Europeantype framework.

Mr. DEAL. No. I’m talking about from the U.S.’ point of view. Do

we not, in fact, make our citizens subject to extradition back to

these countries under almost—with almost no conditions attached,

whereas they put conditions on the extradition back to our country?

Mr. WITTEN. The United States does extradite its nationals

under these treaties, and we advocate that all countries do so.

Mr. SWARTZ. Mr. Congressman, it is the case, however, that in

some circumstances the United States has reserved the right to

seek death penalty assurances itself with regard to extradition of

citizens or others from the United States.

Mr. DEAL. But that would only be in cases where their law provides a death penalty and ours would not for the same circumstances. That’s traditionally been the Far Eastern countries;

has it not?

Mr. SWARTZ. That is correct.

Mr. DEAL. Where their sentences are harsher than ours.

Mr. SWARTZ. That is correct. But, yes.

Mr. DEAL. So, let me give you a hypothetical that would hopefully never, ever happen, and forbid it to happen. A Mexican national comes illegally across the border of the United States, assassinates the President of the United States, and retreats to Mexico.

Am I to understand that, under the current state of affairs with

Mexico, that individual could not be extradited back to the United

States to face a capital felony punishment, nor could he be extradited back unless we would give assurances that he would face a

sentence of less than life without parole? Am I correct?

Mr. SWARTZ. Yes, Mr. Congressman. Unfortunately, under that

hypothetical he would not be extradited without a death penalty

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guarantee, which would be true in many circumstances in many

countries across the world, with the added problem that there

would also be a life imprisonment assurance requested.

Mr. DEAL. What has happened with Mexico, then, is that the

original treaty between the United States and Mexico has now in

part been abrogated by this Supreme Court decision of the Supreme Court of Mexico by placing these additional conditions on it;

is that correct?

Mr. SWARTZ. Mr. Chairman, as has unfortunately been the case

in other countries where judicial decisions have been rendered, the

treaty has, to this extent, been altered. That is, the United States

now has to find, if it wants to extradite these individuals, some

means of providing assurances that are now, according to the Mexican Supreme Court, required by the Mexican Constitution.

Mr. DEAL. In a few minutes we will hear from the widow of Officer March, who was literally executed by a career criminal, illegally

in our country, who retreated back across to Mexico and has been

refused to be extradited back to the United States.

Now I would like to hear publicly the explanation from our State

Department and the Department of Justice as to why the state of

affairs, which in my opinion is intolerable, has been allowed to continue and what your proposed solutions are.

Mr. WITTEN. Mr. Congressman, as our testimony reflects and as

my comments reflected, the State Department and the Justice Department share your view that this situation must be corrected. Because it is a judicial matter, we are working with the Mexican executive branch to see if this decision will be revisited. There is currently at our request and at the request of the senior officials of

the Government of Mexico, a petition to reopen this issue. It was

an interpretation in October 2001 of a Constitutional provision of

the Mexican Constitution. And we totally agree that this decision

should be reversed.

Mr. DEAL. Is the man being incarcerated while these decisions

are being reviewed, or is he running free?

Mr. SWARTZ. My colleagues note that there is not yet a request

for extradition that has been made in this case.

Mr. DEAL. So there is no process whereby, short of asking for extradition, that we could request that the individual be arrested and

held pending that decision; is that correct?

Mr. SWARTZ. Provisional arrest is usually preceding to an extradition request. I should add, if I may, Mr. Congressman, that we

fully recognize the human dimension of this and the tragedy involved and we would like to extend our condolences, if I may, to

the widow of Deputy Sheriff March. The reason that we pursue

these cases, I want to make clear, is not simply because it’s our job

but, we recognize, bringing these people back to justice. Your frustration is our frustration in this regard and it is a frustration

shared by our colleagues in the executive branch of the Mexican

Government as well. We are trying to think through what kind of

solutions we can have here, assuming the decision is not reversed

on the hearing.

Mr. DEAL. Well, I think as both of you recognize, we can talk

about the Ira Einhorn cases all we want to. Those are the rare

cases that get the publicity. We’re going to hear from witnesses in

55

just a few minutes of—in my small county in north Georgia—of

some four separate murder cases, including a driveby shooting at

the local Burger King where they fled back across the border.

The problem is the magnitude of the number of cases coming out

of Mexico. And as you probably will know and these prosecutors

will tell you, they don’t have the resources to pursue these cases

by way of extradition. And what is the process, the Article 4 trial

process, whereby everything has to be transcribed and shipped to

Mexico and they will have a trial? And is that a preliminary to

even deciding to extradite? Do you have to go through that first?

Mr. SWARTZ. No. That is the alternative.

Mr. DEAL. That is the alternative, where they don’t prosecute if

we were to decide to let them prosecute. And if we let them prosecute, we are bound under double jeopardy provisions from ever retrying that individual, even if they come back in our country; is

that generally true?

Mr. SWARTZ. Only California has the prohibition against retrial,

but our view would be aside from that situation, as different

sovereigns we could retry the matter.

Mr. DEAL. It is my understanding that Mexico is requiring as a

condition for proceeding with the Article 4 trial that we agree, regardless of what the state law might be in the jurisdiction where

the crime was committed, that we agree as a condition for that

going forward that there would be no retrial; is that incorrect?

Mr. SWARTZ. We would have to check on that.

Mr. DEAL. I am very concerned that the magnitude of this problem is such that most local jurisdictions can never handle it on

their own. Has there been any suggestion that the Department of

Justice be beefed up in a greater magnitude to assist these local

jurisdictions who are the primary prosecutors in most of these

cases, to assist them in facilitating extradition requests? A small

county would be bankrupted. If we were to pursue extradition in

just one of the four cases, we’re going to hear from one of the witnesses in my county, it literally would jeopardize the possibility of

bankrupting my county’s treasury to pay for that. Has there been

any suggestion that Congress needs to do something to assist the

Justice Department in that regard?

Mr. SWARTZ. I am pleased to say that Congress has acted in this

regard to increase funding for our Office of International Affairs

which is the critical component in this regard. You noted in your

opening statement there had been criticism in a prior Inspector

General’s report. I am pleased to say that report has now been

closed, with the acknowledgment that we have made significant

changes. And it is largely to my colleagues here, the Director of the

Office of International Affairs, Molly Wurlow, and Mary Rodriguez

who handles the Mexico account—and I can say handles it really

tirelessly—to try and push this forward.

Certainly we are there not simply for Federal cases but for State

and local cases. As a result of our experience, we have tried to

think through additional ways in which we can be of service to

State and local offices and try to expand that relationship. As you

know, in the past, we have had on occasion State and local prosecutors at the Office of International Affairs. Funding issues precluded

that program from continuing. We do have training programs that

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are open and that we have tried to extend to State and local prosecutors. And we are now thinking through how we can create a

network in the jurisdictions that have these cases that communicate with our office regularly, where we can keep them updated

on these issues.

Mr. DEAL. Thank you, Mr. Chairman.

Mr. SOUDER. Ms. Sanchez.

Ms. SANCHEZ. Thank you, Mr. Chairman.

Obviously the problem that we have been presented with today

is complex and it again stems from the idea of sovereign nations

and their proper constitutions and their judicial interpretations of

those constitutions. And it is a problem, clearly, in a number of

very serious cases. I just wanted to ask for clarification. I am correct in saying that extradition in this particular case, the March

case, there has been no request for extradition? Is that correct?

Mr. SWARTZ. That is correct, because we have to work through

these various issues.

Ms. SANCHEZ. So there has not been an official request for extradition to the United States for him to stand trial. Short of extraditing folks for crimes that carry the maximum penalties in the

United States, is there a mechanism for perhaps extraditing folks

to stand trial for crimes that may carry a term—consecutive terms

of years? Might that not be one, albeit not perfect solution, but way

to try to increase the number of folks that are extradited back to

the United States?

Mr. SWARTZ. Yes, Ms. Sanchez. That has been the process—we

have been able to succeed with regard to Colombia which requires

life assurances. We have been imposing lengthy terms of years. But

again, the problem is in large part driven by the nature of the

crimes and where State and local governments, or even the Federal

Government, have no option but to charge a death penalty or life

imprisonment, it becomes much more complicated.

That suggests that there may be legislative fixes. There are

sometimes circumstances in which prosecutors can think creatively

about a different charging scheme. And as I mentioned, in States

that have parole, there is also an option to say—even with an extremely lengthy sentence, which in essence a life sentence—as long

as there is the possibility of parole, extradition may be possible.

Ms. SANCHEZ. So that avenue is available, sort of a creative solution to the problem. In terms of our executive branch and our

President who has the power to negotiate these treaties, to your

knowledge, is there anything being done by our executive branch

in the form of President Bush in terms of discussions or work

through diplomatic means or the Justice Department to try to work

through this problem with the Mexican department?

Mr. WITTEN. Secretary Powell and Attorney General Ashcroft

have discussed this and corresponded about this repeatedly with

counterparts in Mexico. And Ambassador Garza, as its representative to Mexico, has discussed this, as I understand it, with everybody from President Fox to the Cabinet officials that are the counterparts to our State and Justice Departments.

Ms. SANCHEZ. So those discussions are ongoing?

Mr. WITTEN. Yes.

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Ms. SANCHEZ. There has not been an acceptable resolution to the

problem. Thank you. I yield back the remainder of my time.

Mr. SOUDER. Did you say that in Mexico they have the ability to

do consecutive sentences like Colombia, or they do not?

Mr. SWARTZ. My understanding is that in Mexico a sentence even

up to 60 years may be a permissible sentence simply because it is

not in terms a life sentence.

Mr. SOUDER. Can you have multiple sentences?

Mr. SWARTZ. I would have to check on that, Mr. Chairman.

Mr. SOUDER. Mr. Bell.

Mr. BELL. Thank you, Mr. Chairman, and thank you all for your

testimony. Representative Deal was talking about the magnitude of

the problem. I wanted to get a little firmer handle on just what the

magnitude is. Actually I was not here, I think you all may have

talked about the number of cases that we face right now. Do you

all have that number?

Mr. SWARTZ. In Mexico, Mr. Congressman, we have had 25 fugitives extradited this year—in 2002—which was a record. To date

we have had 23 extradited. But critically we have had 19 refusals

on the life assurance issue either because we couldn’t provide the

assurance or because the assurance was found to be inadequate.

And as I mentioned in our opening statement, those numbers

don’t totally capture the problem because while the number of people extradited has been important and these are important cases,

some of our most serious cases are among the 19.

Mr. BELL. And those are just the numbers with Mexico, correct?

Mr. SWARTZ. Correct.

Mr. BELL. As far as with other countries, France or Germany,

much smaller numbers?

Mr. SWARTZ. That’s correct. Overall I believe it has been 266 fugitives in the last year returned to the United States.

Mr. BELL. And if you were trying to look at a growth pattern for

this particular problem, has it gotten worse in recent years, more

people fleeing, or is it staying fairly consistent over the last 5 to

10 years?

Mr. WITTEN. The problem—I mean over the years, the problem

has grown with the growth of transnational crime. With Mexico

these issues have become blockbuster issues. The extradition of

multinationals was a huge bilateral issue into the late nineties and

into this year. And we have had few successes in the mid-nineties,

for example, in terms of returns of Mexican nationals. The January

2001 Supreme Court decision facilitated that so we had a bump up

in extraditions from Mexico.

In terms of absolute numbers, in terms of over the years, we

could certainly put together numbers dating back several years at

least on the growth of our extradition request. I think there has

been some growth over each of the last several years.

Mr. SWARTZ. And as my colleague points out, it is certainly the

case that as crime is increasingly transnational and as crimes can

be committed remotely, without entering the United States, we

fully expect this to be a problem that increases rather than decreases.

Mr. BELL. How long have we been engaged in negotiations with

the Mexican authorities to try to change their extradition policy?

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Mr. WITTEN. Well, it’s a continuous process with such a busy relationship. As I mentioned, in the nineties—that was before this

life imprisonment decision came down in January 2001—a huge

amount of our dialog with Mexico dealt with Mexican nationals, because they typically would not extradite their nationals absent extraordinary circumstances. The Mexican Supreme Court liberalized

that in January 2001. And the executive branch of Mexico now has

much greater flexibility than it did before that ruling. So now that

issue is somewhat better and now we have a new, harder issue in

a way—not harder, but different issue, and that is life imprisonment without parole. And it’s continuous.

Mr. SWARTZ. We have worked with Mexico since the date of that

decision in October 2001 to try and see what can be done about it.

Mr. BELL. In terms of trying to change the policy, is it your opinion that we’re on the right track or can greater pressure be brought

to bear on the Mexican authorities?

Mr. WITTEN. Well, the posture now is we can be—it’s hard to say

how optimistic it’s realistic to be. We know their executive branch

is trying to get this October 2001 decision revisited. They disagreed

with it at the time it came down. They argued against it in the

pleadings.

It’s hard to tell, Congressman, because as was noted by several

members of the committee and by us, the Mexican Supreme Court

is independent of the executive branch. They interpret the Constitution. It’s not merely a matter of interpreting an act of their

legislature. They interpret the Constitution in a way that is not favorable to extradition of life imprisonment without parole. So our

hope is that the Supreme Court accepts the executive branch’s ruling. And right now we’re in a wait-and-see period. And in the

meantime, Mr. Swartz and his many colleagues at Justice are

working with Federal and State prosecutors to cope and do the best

we can until the situation is clarified.

Mr. SWARTZ. Even if the decision at the Supreme Court proves

to be unfavorable, as Mr. Witten noted, we will try and find alternatives. But we recognize in the context of extradition of nationals

that it’s an issue that we will continue to push. Even in countries—

with all due respect to their sovereignty—that have Constitutional

bars on extraditing of nationals, we continue to present in a manner we believe respects their system, the importance of moving forward on that, and we will continue to press the importance of this

issue.

Mr. BELL. Basically since it’s a court decision in Mexico and not

a political decision in Mexico, it’s very difficult to bring pressure to

bear and get them to change the decision. They’re going to have to

work it through their court system; is that correct?

Mr. SWARTZ. That’s correct.

Mr. SOUDER. It’s important for the record to point out that the

19 cases, while very severe, is nothing. In other words, the Los Angeles—as I pointed out, the Los Angeles District Attorney’s Office

says he has 200 murder suspects that have fled to Mexico. Doesn’t

mean that they are pending extradition, but it does mean, in fact,

people are increasingly realizing that the lack of extradition means

that it is relatively safe to kill policemen in the United States and

relatively safe if they can get across the border.

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This committee has held multiple hearings on the southern border. Congressman Deal and I spent 31⁄2 days on the Texas border.

And we could see all kinds of groups moving back and forth, the

water littered with inner tubes where people had stacked up as

people moving back and forth across the border. When we did a

hearing in southern Arizona, you could see multiple groups, totally

unintimidated by the Border Patrol, walking back and forth across

the border. One guy had done it two times a year for 8 years, probably walking to a job in Indiana, because we really haven’t worked

out our legal residency type things. But our borders are extremely

porous. And if indeed people can figure out that they aren’t going

to be held accountable and even put in prison in these other countries if no request has been made, that we have a gigantic problem.

Furthermore, this committee has been told by multiple prosecutors, in addition to the Los Angeles District Attorney, that they

don’t bring it up anymore, because as Congressman Deal pointed

out, in Georgia that case probably isn’t showing up as an extradition case because they know nothing is going to happen.

Then we have this double standard that if an American citizen

kills a policeman, if an American citizen does something, they have

a totally different legal standard in America, that if you can somehow get to Mexico afterwards—which is unfair to those who actually try to become legal residents in the United States, become

American citizens, it means their liability is different than somebody else.

And this is a huge dilemma. Because if in fact these nations

don’t change some of these extradition policies, what it means is we

have to watch our border going both directions, because we will

have no choice down by Los Angeles or in other parts but to look

at the people going back the other direction to make sure they

aren’t fleeing crimes in the United States. And if they’re not on a

watch list in the United States, then we have a double border problem, because we can take action here in the United States if in fact

we can’t work it out with other countries, but it would cripple our

economy to do so.

And both of us need to understand, the United States and Mexico, that we have an incentive to try to work these policies out

whether or not it’s in the Constitution or whether or not some

judge decided something, because our nations are so interactive

right now, particularly along in the border. But in Indiana or Georgia, we wouldn’t have our industries functioning if we didn’t have

some kind of flexible border.

But to the degree that people think they can commit terrorist

acts in the United States and kill American citizens and somehow

get off just because of this lack of an extradition treaty, we have

a huge problem. This isn’t just a little problem; because, as we are

increasingly finding, some of the terrorist risk people are also moving through the Bahamas, Mexico, and other places where we don’t

have as much Border Patrol as we have at our airports or other

things like that.

Mr. SWARTZ. Mr. Chairman, I couldn’t agree more. This is a tremendous problem. And as you say, the 19 doesn’t fully capture in

terms of the number of cases, many of which have not been

brought. We have more than 300 extradition cases. But beyond

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that, as you note, in many circumstances the decision has been

made that it does not make any sense to try to seek extradition at

this time. Perhaps we will locate the individual back in the United

States or there will be some other means of obtaining the defendant.

But we have, exactly along the lines you suggested, pressed with

Mexico that they do not themselves want to become a safe haven

for these individuals because these people will be committing

crimes in Mexico as well. I think our executive branch counterparts

recognize that. But as we’ve discussed earlier, it’s one of the issues

we’ll continue to press, no matter how the Supreme Court decides

this issue in Mexico.

Mr. SOUDER. Any other questions or comments? Mr. Deal, do you

have any?

Mr. DEAL. Yes, Mr. Chairman. I did not want us to leave the impression that the response to Mr. Bell’s question of the 25 that

were extradited is anywhere close to the number. And I believe you

indicated just a minute ago you had some 300 extradition requests.

You obviously have made significant progress because the IG report of 2002 indicated there were 2,500 outstanding extradition

cases. Am I to understand that you have now eliminated that 2,500

number down significantly?

Mr. SWARTZ. One of the things we have done in terms of responding to the Inspector General’s report was to go through the various

outstanding cases, not just for Mexico but for all of our countries,

to try and eliminate cases that no longer seemed to be in any way

a request for extradition or in which we no longer had reason to

believe the individual was even in the country. This is our best estimate of now pending live extradition cases with Mexico, 303—

2,500 for the entire world; 300 with Mexico.

Mr. DEAL. Does any other country come close to having the number of 300?

Mr. SWARTZ. Colombia is the only other country that comes close.

Mr. DEAL. But they are more cooperative.

Mr. SWARTZ. They are cooperative in large part because so far,

at least with one or two current issues, we have been able to structure the sentences in a manner that meets their request for life assurances.

Mr. DEAL. Now, it would seem to me that since the Department

of State has the jurisdiction in dealing with other countries, do we

give any consideration in negotiating any other agreements with

other countries as to whether or not their extradition treaties are

favorable or unfavorable to us? For example, with regard to establishing quotas for a number of their citizens that are allowed into

our country, is the fact that they are cooperative or uncooperative

a factor in those determinations?

Mr. WITTEN. I think there are a couple of parts to that question.

One is the direct link between extradition and other aspects of the

relationship. The other is—let me start with a different part of it,

sir. Extradition is one part, as Mr. Swartz has mentioned, of the

overall relationship with Mexico. We have cooperation that is hampered, hopefully just for the time being, with Mexico. They are cooperating in other matters, investigations, prosecutions and information sharing on other matters.

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So one aspect of the question would be is extradition—and the

problem that we’re currently having on life imprisonment, does

that so taint the entire law enforcement relationship that we would

say that the law enforcement relationship is so crippled that you

take it to the next step: Would the law enforcement relationship relate to other issues, be they economic issues trade matters, other

immigration matters? And I don’t think we are at that point.

We have clearly a serious problem in this part of our relationship. We’re working on that problem in the way there are other

issues in the Mexican relationship that are beyond my personal

ability to discuss with you in any depth, that we are also working

on. It’s a complicated relationship. It’s a long border. We have a lot

of issues that need to be sorted out.

Mr. DEAL. On a somewhat related issue, have there ever been

discussions about requiring nations to compensate each other for

the incarceration of their own nationals within the prison system

of another country? I think all of us know that on our domestic

side, a huge number of those who are in our Federal prison system

as well as in our State prison systems are citizens of other countries, and they consume a huge amount of revenue to keep them

in our prison systems. Do we have any system whereby we ask for

reimbursement from other countries based on the number of their

citizens that are incarcerated in our prison systems?

Mr. WITTEN. Sir, as you probably know, we have prisoner transfer treaties with Mexico and a few other countries. There are a

dozen relationships like this around the world where if the two

countries agree, the person can serve the sentence in their country

of nationality. And we do have Americans returned pursuant to

these treaties. We sent nationals of foreign countries back to their

homes in appropriate cases.

Mr. DEAL. If you could furnish us with information as to the

number of those cases and the countries involved in that.

Mr. WITTEN. That shouldn’t be a problem. The criminal division

of the Justice Department administers the program, but certainly

we will give you information on the network of treaties and how

they work.

Mr. DEAL. That’s simply a matter of once they have been convicted in the country, transferring them back to their native country.

Mr. WITTEN. That is a part of your question. It’s sort of the quantity of people from other countries in our prison systems. In terms

of compensation, there’s no international agreement scheme for

that, and I am not aware that we pay compensation or receive compensation for the costs associated with the custody of fugitives.

Mr. DEAL. It is one of the largest unfunded mandates faced by

States and local governments for the failure of the Federal Government to enforce its immigration laws. That is a huge cost factor to

local and State governments.

Mr. SWARTZ. To the extent we can work with any State or local

government in that regard, we do, as Mr. Witten suggested, have

an international prisoner transfer unit in the Department of Justice that deals with these issues to try to make sure that countries

bear the cost of their own criminals and to secure the return of

U.S. citizens to serve their sentences here.

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Ms. SANCHEZ. I have a few followup questions and I will try to

be brief. Aside from extraditing suspects to the United States or

using the creative charging process in prosecuting these individuals, what other remedies are available for trying to bring these individuals to justice? And I am referring specifically to efforts within

the countries to which they fled to perhaps try them and convict

them and get them to serve a term of years in those countries.

Mr. SWARTZ. Congresswoman, as many countries do have a system in place that allows the possibility of trial of the individuals

in that country under some circumstances—Mexico has such a system—the results have varied in terms of whether or not they have

been considered to be successful or not. It’s usually a difficult task

to secure convictions in those cases. It involves the Federal, State

or local prosecutor in presenting evidence in a remote location, oftentimes under different rules.

So wherever possible, our argument has been—and it’s been key

to extradition—that the individual should be tried and sentenced

in the jurisdiction in which the crime has been committed. There

are other alternatives, though, as you suggest. We certainly sought

deportation whenever possible, and some countries have been willing to work with the United States, in the absence of extradition

treaties or in the absence of deportation circumstances, to return

or to make individuals available to us. So we try to consider every

alternative in every case.

Ms. SANCHEZ. But that definitely is one of the options.

Mr. SWARTZ. That is one of the alternatives that is considered.

Ms. SANCHEZ. And I want to clarify yet again. Obviously, there

have been discussions among our government and the executive

branch of the Mexico Government, who it appears to me—and I

want your confirmation of this—seem to be motivated to try and

address this problem.

My question is do you sense a reluctance on the part of the executive branch who seems to be hampered by the independent judicial interpretation of the constitution? Would you characterize it as

a reluctance on Mexico’s part to try to address this problem? Because I want to make sure that we’re clear with what efforts are

being made on the Mexican Government’s part.

Mr. SWARTZ. The executive branch argued against this decision

before it was rendered and in fact, I believe, thought that we would

prevail on this issue. From the Department of Justice point of view,

we have not seen a reluctance to raise this issue. I think that Mexico, on the executive side, recognizes the importance of this issue

to the United States and recognizes the danger it poses to the people of Mexico by having these fugitives consider Mexico to be a safe

haven. Regardless of their recognition, it remains a serious problem

for the United States.

Mr. WITTEN. Our embassy is working closely with the Mexican

executive branch. And I just want to echo Mr. Swartz’s comments

that we do see a high level of motivation and cooperation, and

we’re hoping this works out in a correct way.

Ms. SANCHEZ. Thank you.

Mr. SOUDER. Is the Mexican executive branch at all—have you

been able to pursue, or is there any legal ability to pursue if an

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extradition request is made but is held up for some reason, like

through the courts, that they would put the person in their prison?

Mr. SWARTZ. In some circumstances we request provisional arrest

of the individual pending extradition. We would hope in the normal

set of circumstances that individual would be held pending extradition, but that doesn’t always take place.

Mr. SOUDER. Wouldn’t the executive branch have the ability to

impose an up-to-60-year sentence if it would be the equivalent in

the United States? Are there options for the executive branch to

work around in their domestic side if we can’t resolve in the court?

Mr. SWARTZ. That would involve a prosecution internally within

Mexico under Article 4 or otherwise, which might present other

issues. But there are certainly alternatives if we in the United

States are willing to go that route.

Mr. SOUDER. If their court blocks us, we have a big problem. We

either have to do something at the border or have a legislative solution.

Mr. SWARTZ. I fully agree. If the court blocks us, we need to

think of some robust solution to this issue that allows us to deal

with it, not only case by case, but pass a plan to deal with it.

Mr. SOUDER. One last question before we move to the next panel.

On the Colombia question, this committee—because of narcotics

focus, obviously, in addition to the many cases in Mexico but particularly with Colombia—we want to make sure we are kept informed on the extradition cases.

Last night when we met with President Uribe in bipartisan leadership, there was a lot of consternation about the immense difficulty when they are trying to negotiate peace treaties with narco

terrorists and particularly some of the paramilitary leaders who

are wanted on various serious charges in the United States, can

they in fact forgive those if they lay down their arms? And this is

another type of a realm, because in fact our death penalty and penalties here has been one of the biggest leverages we have in the

battle in Colombia, because they are so afraid of coming to the

American judicial system.

On the other hand, we have to continue to make it clear to Colombia that it does not mean all of a sudden we are going to waive

our American justice system because they have made a guess at

best that this person is going to cooperate for awhile. And I think

that President Uribe got that message last night. And everybody

listened to his dilemma that he’s facing in his country, but there

is not a lot of patience when people have been major narcotics dealers that have resulted in thousands of deaths in the United States

and around the world that suddenly this is going to be waived. And

I hope you will continue to take that message back.

Mr. SWARTZ. Thank you. We will take that message back.

Mr. SOUDER. Thank you for being with us. We will probably have

additional written questions that we will send over in the next few

days. Thank you.

The second panel would now come forward and remain standing.

The Honorable James Fox, District Attorney, San Mateo County

California, representing the National District Attorneys Association; the Honorable Daniel J. Porter, District Attorney, Gwinnett

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Judicial Circuit, Georgia; Ms. Teri March, widow of Los Angeles

County California Deputy Sheriff David March.

[Witnesses sworn.]

Mr. SOUDER. Let the record show that each witness responded in

the affirmative, and appreciate you coming today and sharing your

testimony with this committee and being willing to be subjected to

our questioning.

We are going to start with Mr. Fox. You are recognized for your

opening statement.

STATEMENTS OF JAMES FOX, DISTRICT ATTORNEY, SAN

MATEO COUNTY, CA, REPRESENTING THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION; DANIEL J. PORTER, DISTRICT ATTORNEY, GWINNETT JUDICIAL CIRCUIT, GEORGIA;

AND TERI MARCH, WIDOW OF LOS ANGELES COUNTY, CA

DEPUTY SHERIFF DAVID MARCH

Mr. FOX. Thank you, Mr. Chairman and members of the committee. My name is Jim Fox. I am the elected prosecutor for the county of San Mateo in California, a position I have held for the past

21 years. I am vice president of the National District Attorneys Association. And on behalf of that Association, I would like to express

our gratitude for being invited to share our comments with you

today.

Up until the end of the last century, international issues really

were not of much concern with local prosecutors. Obviously our

country and our world have changed. My county alone, I have three

international airports within 25 miles of my office. San Francisco

International Airport is located within my county. And so obviously

the ability to travel internationally has been tremendously increased. We are no longer relegated to traveling by ship, and people can commit crimes and be out of the country before the tape

is even up around the crime scene.

We have also, obviously, lengthy international borders with both

Mexico and Canada and people are relatively free to cross those.

So these are areas of concern.

The idea of citizenship has changed also. As you have heard,

there is a concept of dual citizenship. I myself am a first generation

American. Our youngest son has dual citizenship with Ireland.

That is something that is expanding. In fact just this past week,

the Philippine Government has reestablished dual citizenship and

is readmitting to citizenship some of their former citizens who had

become U.S. citizens. Our country is incredibly diverse and we have

one of the largest Philippine communities in our county outside the

Philippines. Daly City is approximately 50 percent Filipino.

We try to protect our citizens and the concept of justice obviously

varies from country to country. You have heard extensive comments already. What I would like to talk about is what has occurred specifically in our county as a result, perhaps, or maybe it

was unrelated to the October 2001 decision of the Mexican Supreme Court. In January, 3 months after that decision, two Mexican citizens and two U.S. citizens participated in a quadruple

homicide in our county. It was drug related. They basically executed four Mexican citizens. The two citizens of the United States

have been apprehended. One was 17 years of age. He is being prosVerDate 11-MAY-2000 10:37 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 D:\DOCS\92899.TXT HGOVREF1 PsN: HGOVREF1
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ecuted as an adult. The other was 21 years of age. They are both

facing life without the possibility of parole for a multiple homicide.

The two people who fled to Mexico, including the ring leader, the

one who orchestrated the whole thing, have basically acquired immunity now. The ring leader was apprehended in Sinaloa in April

of this year and we were informed only if we were willing to waive

the sentence that is provided for by California law would we ever

be able to see this individual back to receive justice in California.

Well, frankly, I think that’s a serious question of equal protection.

Why should U.S. citizens who have been apprehended in our country face a more severe penalty, life without the possibility of parole,

than the ring leader who orchestrated the whole thing to receive

a determinant sentence? I don’t think that’s fair. So we chose not

to pursue extradition and in fact that individual is now living free

in Senaloa. And if the Mexican Government wishes to allow people

to flee there, I guess that’s something over which we really don’t

have too much control.

But the concern that I have is that Mexico does allow extradition

for a determinant sentence. And what I am suggesting to you is

that every peace officer in the United States is at significant risk

because of that policy. If an individual in our county committed an

armed robbery and used a firearm, they would be facing a determinant sentence of up to 15 years. If they got to Mexico, Mexico

could and would extradite for the robbery. If, however, they were

fleeing to Mexico and an officer stopped them, that person has

every incentive to execute the police officer, because he will then

have immunity once he arrives in Mexico. So I think that it’s an

intolerable situation.

I would suggest that there are some things that could be considered, including in any future extradition agreements, inclusion of

a full faith and credit provision. Obviously, for those countries that

do not believe or do not recognize the death penalty, that is certainly something that could be conditioned as a waiver of the extradition, or pursuing the extradition, that we would not seek the

death penalty. But frankly, I don’t think it’s fair to our citizens to

have to negotiate and say that we will give you a 30-year term so

you can come back. Whereas our citizens are facing life without the

possibility of parole.

I know there had been a position within the Department of Justice, a liaison position, and we encourage that to be reestablished

because it does provide assistance. And we are hoping there would

be some efforts to provide training for local prosecutors in these

issues because they are significant and they are complex.

On behalf of the local prosecutors of the United States, I would

like to thank you very much for allowing us to share our comments. And we look forward to working with you, the State Department, and the Department of Justice.

Mr. SOUDER. Thank you and your full statement will be in the

record and any additional materials you want to submit from your

Association.

[The prepared statement of Mr. Fox follows:]

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Mr. SOUDER. Mr. Porter.

Mr. PORTER. My name is Danny Porter. Normally I don’t need

a mic, given my voice, but I am the district attorney of Gwinnett

County, GA, which is a suburban county on the northeast side of

Atlanta. I think the reason that I’m here is that I was asked to

be—given the nature of my county in the year 2000, our immigrant

population was really not even countable on the census, or, excuse

me, the 1990 census.

In the 10 years since 1990, Gwinnett County holds the distinction of having the largest immigrant population in Georgia which

is one of the fastest States in population growth of the immigrant

population. We are also the adjoining county to Congressman

Deal’s county of Hall County.

I am here to echo the things that Mr. Fox has said. I don’t normally have the luxury of looking at things from the international

scope. I am usually too busy dealing with victims of violent crime

and explaining to them the intricacies of international extradition

and why we cannot bring the person who executed their loved one

or hurt their loved one back to this country to face justice. That

is not to say we haven’t had successes. There are countries that

have like minds and systems that will work with the United States

to prevent injustices, and I think it’s important that we put some

of those examples on the record and make this just not a hearing

of condemnation.

A year ago, a minister on Grand Cayman Island, a music minister, applied at a church and gave a false application. One of the

church members looked and became suspicious of the person—of

the minister—and looked on the Internet and found local articles

from a Gwinnett County newspaper where that person was charged

with child abduction, where he had left with the mother of the

child stealing those children from the custodial parent and fled and

was being searched for. That was identified as the prospective

music minister. The Cayman Island authorities moved swiftly to

secure the safety of those children, to secure hearings. And with

the cooperation of the State Department and the work of the State

Department, my office was able to bring those children back and

reunite them with their custodial parent. I am confident without

the efforts of the Government of the Cayman Islands, those children would have disappeared again and we would have had another year-long or 2-year-long search for those children.

So there are successes. Canada, for instance, is one of those

countries that will move swiftly in child custody issues and return

children to their custodial parents, but Canada won’t extradite telemarketers. So the international field of extradition is a mine field

for local prosecutors. I think one of the growing problems is the

problem that has been addressed in this hearing, and that is the

problem of our relationship with Mexico. And I think one of the

things that the committee has to realize is that part of that problem is, for instance, in the examples that are given in my written

testimony. I would like to throw those out just a little bit.

It somehow is very difficult for a local prosecutor to accept that

in the Toombs County murder where that defendant killed two persons, was tried and acquitted in an Article 4 hearing, he is now a

booking officer in a Mexican prison. It is somehow difficult to acVerDate 11-MAY-2000 10:37 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 D:\DOCS\92899.TXT HGOVREF1 PsN: HGOVREF1
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cept that a person who would commit murder in our country is now

part of the judicial system in Mexico. It is difficult to accept that

a person that I have to make a decision where my defendant clearly murdered in front of four eye witnesses another Mexican citizen,

fled to Mexico, and I have had to make the decision I am more likely to catch him in Gwinnett County than I am to get him out of

Mexico in the judicial process.

It is very difficult as a local prosecutor to accept that people are

doing driveby shootings in neighboring counties, in Congressman

Deal’s county, fleeing; and we as prosecutors simply have to make

the decision we are more likely to catch them in the United States

and bring them to justice than to successfully bring them back

from Mexico.

Even though there are clearly countries where we have a cooperative relationship, where international extradition can be a success,

the problem with Mexico is growing. The problem with Mexico is

presenting a burden on the local level. And we as prosecutors have

to bring that not only to your attention, but we have to ask for your

help in training. I can tell you the first time you ever have to do

as a local prosecutor—the first time you ever have to fill out the

paperwork it begins, and your education begins, and I don’t think

prosecutors should have to fall in holes to learn. They should be

taught. We should have more input into decisions that are made

at the State Department level that have to do with our local cases

and our local concerns, and I think those are things Congress can

do something about.

Thank you on behalf of the working prosecutors, not that Mr.

Fox is not, but I am here to represent the nonorganizational prosecutor. Thank you.

[The prepared statement of Mr. Porter follows:]

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Mr. SOUDER. Ms. March. We appreciate you have come today and

we extend our sympathy to you. Your husband died, like many

other police officers around the country, trying to protect the rest

of us, and we appreciate your willingness as a spouse to go through

the sacrifices day to day, in addition to the ultimate sacrifice, so

American citizens can be safe. You are going to get a national

forum which in his memory raises some of the concerns that you

have been expressing over time.

Mrs. MARCH. Thank you very much for giving me the privilege

to come here today. I think it is very important that we remember

that I am a real person. David’s job and the oath that he took was

real. Armando Garcia and his evil acts are real, and the safety of

our community and the threat of it is real.

Imagine hearing that your husband was shot and killed. You

have to now plan your life for a future that wasn’t in the plans

when you decided to get married. And then to hear that there’s not

a lot that can be done. I heard that his killer fled. I said OK. I

know the great honors that I saw when they buried my husband,

everything from folding a flag to a fly over. So I thought everybody

was on my side to see this man pay. They said that he had fled,

and I thought we were going to turn every rock over and find him.

I later found out on the day Dave was buried, we knew where

Armando Garcia was. And then I was introduced to words I never

heard of, ‘‘treaties,’’ ‘‘Article 4s,’’ ‘‘corruption,’’ ‘‘bounty hunters.’’ I

didn’t understand. All I knew is that I had a dead husband and a

daughter to raise by myself.

When I learned of his criminal activity prior to my husband’s

killing, I can understand why this guy did this, and I feel like our

system let him do it. He was deported three different times for various drugs, concealing a weapon, and other various things. This

perpetrator has been doing crime since youth. Prior to my husband’s murder this gentleman, for lack of better words, tried to kill

two other people, and our system just sent him back. They deport

him. No punishment is given, and he gets a little more brazen

when he comes back.

My husband made a traffic stop at 10:30 a.m., this man didn’t

want to have his freedom taken away. In a split second he took my

husband’s life. He shot him in the chest, started to walk away, and

came back and executed him in order to finish the job. That man

is free. This man can kill again. This man has said, I have killed

one and I will kill more. I know that our Sheriff’s Department has

gone to great lengths trying to lure, trying to trick and trying to

bring him back. Yes, we have not filed for extradition. Would you

trust Mexico? Would you trust that they would do the right thing?

I don’t speak the language. I don’t get to testify. The witnesses

don’t get to testify except on paper.

I want to see the eyes of the man that did this. I want to see

if he has any ounce of remorse. I want to know why. I deserve to

know why. You can put him away now. It is very frustrating. Mexico has tried to work with me and wanting me to go with an Article

4. Article 4 means he gets prosecuted down there, and I cross my

fingers that justice will prevail.

However, I have heard of horror stories. I have heard of weekends in jail. I have heard of the injustice. I think Mexico’s comVerDate 11-MAY-2000 10:37 Jul 12, 2004 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 D:\DOCS\92899.TXT HGOVREF1 PsN: HGOVREF1
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pletely jeopardizing and compromising our justice system. If we

give into Mexico and say OK, Mexico, do us right, and they let us

down, what are we saying to our law enforcement? They are putting their lives on the line for us. They take that badge and that

oath so seriously, just as you do. It is such an injustice what’s happened, and it’s a slap in the face to me, it’s a slap in the face to

what my husband stood for, and it’s a slap in the face to law enforcement.

Our law enforcement need to know that we stand behind them

110 percent. We don’t want this country to get more corrupt because we don’t stand behind our men and women who take the

oath to protect us. I feel it’s only fair that justice is here. This individual chose to leave Mexico, reside here in California and take a

life in California. He took my personal hero, and I want to see him

pay. I want him to be able to make a phone call and see that he’s

in jail. I personally don’t know how to feel about the death penalty

or life in prison. I just know I don’t want him to kill anymore, and

his freedom allows that right now.

We do have a petition in place that is organized by the COPS organization, Concerns Of Police Survivors, pleading with the Bush

administration to acknowledge this problem that we have. I have

6,000 signatures currently, and I know there’s going to be more to

come. We don’t want to see our police officers die and then go

unpunished by giving them a reward for going to Mexico. We want

to tell all criminals that you will pay and we will go to the fullest

length of the law to see that justice will be done.

I thank you very much. I am going to stay strong and I’m going

to keep going out there and keep telling people what’s wrong with

our system. In the meantime the only thing is that I have advertised how to get away with murder. Please help me change that,

because I won’t stop talking.

Mr. SOUDER. Thank you for putting a human face directly on the

problem.

[The prepared statement of Mrs. March follows:]

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Mr. SOUDER. We hear stories, and one of the things that’s frustrating as a Congressman, you feel like Mr. Porter said, not necessarily focused a lot on the international problems. Sometimes it

feels like we are trying to deal with international problems in the

big picture and miss the human side of the cases that you deal

with every day. And I think one of the things that is important is

to try to marry those two things so we don’t forget the human side.

And also we realize these things are incredibly complicated and difficult to work through.

One question I had for Mr. Fox and Mr. Porter. Have you had

any successful cases of working with Mexico in an extradition that

you know of?

Mr. FOX. Mr. Chairman, there had been a few cases where we

did pursue the Article 4, but frankly those were cases that were

problematic at best in terms of the witnesses and whether or not

we felt that we would really be able to pursue it. There were cases

where Mexican citizens had been killed by Mexicans in our county

and they were interested in doing the Article 4 and we acquiesced.

But frankly, that is a rarity because I do not have that much confidence that even if there were to be a conviction that there would

be a sentence anywhere near what California law provides for.

I would also like to expand a little bit—I know Congresswoman

Sanchez asked about the determinant sentencing. In California we

have indeterminate sentencing for second degree murder, first degree murder; and then for first degree murder with special circumstances, that is life without the possibility of parole. Second degree murder is a sentence of 15 years to life. There is no way for

us to get a murder conviction. We can call it a manslaughter but

the maximum penalty for manslaughter is 11 years. So there are

significant issues in terms of trying to formulate a solution to the

problem so we can come up with a determinant sentence.

Mr. SOUDER. And 11 years could be parole.

Mr. FOX. Eleven years is the maximum term. They would get out

after having served 85 percent of that. They then would be paroled

but could only return for a year. It depends on how the manslaughter was accomplished. If they used a firearm, then there

would be additional enhancements imposed.

Mr. SOUDER. Mr. Porter, do you have any experiences of any successful cases; and another way to say that would be if you did have

any experiences—Ms. March raised a very difficult question. And

that is if, in fact, they are even convicted, do they get not only a

reduced sentence but dramatically reduced sentences?

Mr. PORTER. I never had a case successfully extradited from

Mexico to the United States to face charges. I had one case prior

to the October decision in which—prior to the life sentence question, where Mexican authorities refused to extradite a woman who

was a party to a gang murder that occurred in October 2000 in

Gwinnett County, or 1999, basically refused to extradite. We went

through the process but they would not extradite her. They said

she was not significantly involved in the murder. They essentially

made a guilt/innocence decision in the extradition hearing and

would not bring her back.

The most recent case that I have mentioned is the Pinion case.

That defendant is currently in jail for rape in Mexico and they are

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moving forward with their charges, although the legal office in

Mexico City say they expect those charges to be dropped. The Mexicans are willing to do an Article 4 hearing on him but will not extradite him. And I made the decision that I am not going to pay

the $10,000 to translate my case to go through the Article 4 hearing. So I guess being a lawyer, I answered that in more words than

I had to, but the answer is I never had a successful extradition.

Mr. SOUDER. When you talk about you had one case that didn’t

go well and you made another decision, what kind of network,

through your Association and others, does this spread through district attorneys through the country that don’t waste the time or

$10,000? Is there a pretty avid network?

Mr. PORTER. Mr. Fox is vice president of the national organization. He could probably address the national network. I can tell you

that Georgia district attorneys meet four times a year as a group.

We trade examples that are basically outlined in my testimony that

are all from Georgia. And I can tell you that I got six pending murder warrants against Mexican citizens, that I have no idea where

those people are. The best information we have is they fled back

to Mexico, and I have no expectations of being able to successfully

bring them out of Mexico. My best hope is they will be captured

in the United States. At this point I can tell you—our best information is they fled to Mexico.

Mr. SOUDER. You are hoping they return.

Mr. PORTER. I am hoping they return.

Mr. FOX. I am active in our State association. California is fortunate is that we do adjoin Mexico. The Attorney General’s Office in

our State does have full-time people who liaison with the Mexican

justice people. What you have heard today, the biggest problem

was not created by the executive branch but by the judicial branch.

The National District Attorneys Association has discussed this at

some length because it is a matter of concern for all prosecutors

across the country. It is not unique just to California or to the border States.

Mr. SOUDER. Ms. Sanchez.

Ms. SANCHEZ. Just a couple of comments on some brief questions.

Mr. Fox, I don’t disagree with you on the determinate sentences;

I am very well aware of that. It’s frustrating for me as a Member

of Congress to sit here and understand that our system is failing

us, that there are these problems with extradition. It’s very clear

from the testimony of Mrs. March what the real human cost is.

And there is not a person up here that disagrees that you deserve

to see justice served in this case. I want you to know that. The

problem is we are looking at a flawed system, albeit something that

we have very little control over, and trying to think of creative

ways to work around that.

So my question with respect to trying to extradite instead of—

for crimes that serve the maximum penalty, which would be the

death penalty or life in prison, trying to find creative ways that we

can at least bring those individuals to some type of justice, albeit

imperfect justice, in the United States so that they do serve their

time.

And Mrs. March, I just really want to thank for your presence

and your courage here today, because you help highlight, obviously,

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what is becoming an increasing problem, again not just among the

border States but among all of the States, the United States. Your

testimony here is invaluable because it will help further highlight

that problem and hopefully bring about some type of discussion

that can prove to be fruitful in the future.

And, again, I just want to reemphasize this, because I don’t want

people to get the misperception that the Mexican Government, because of a lack of will on their part, is allowing this to happen. It

appears to me that they are trying to work with law enforcement,

they are trying to do the right thing, but they again are hampered

by an independent judiciary branch that has made a Constitutional

interpretation that pretty much ties their hands. And I just want

to reemphasize the point that it appears that they are trying to be

as cooperative as they are, and as imperfect as it is, you know,

hopefully there may be something that can be done, either through

revisiting of their judicial interpretation or through other means,

to try to make sure that folks like Mrs. March have their day in

court and have the right to see the accused answer for their actions

and serve time for their crimes.

So I just want to thank all of you for being here this morning

and providing your testimony.

Mr. PORTER. Congresswoman, if I might in response to your

statement, is I think that makes it more important that this Congress act to fund those positions within the State Department and

within the Justice Department so that American interests can be

represented in these courts of foreign countries in similar-type

legal proceedings as the amicus brief that’s filed by different organizations in different cases. It is not unusual for foreign governments, particularly in death penalty cases, to file pleadings in

those hearings. We should be doing the same. We should be in

Mexican courts fighting for the decisions that we want on an amicus basis. And I think Mr. Fox agrees with that.

Mr. FOX. Absolutely.

Mr. PORTER. And we can only do that through the Justice Department and the State Department.

Ms. SANCHEZ. Your point is well taken.

Mr. SOUDER. I wanted to tell Mrs. March, too, that we will submit your full statement and supporting records in the record, because you have detailed in addition multiple cases that I asked earlier, dating back, by the way, to 19—it looks like 79—in the one

group of cases, and Senator Feinstein’s letter also has cases that

go back into the eighties. And while the court has certainly complicated matters for the new administration in Mexico, which has

made—President Zedillo’s and President Fox’s administration’s

made more progress in the judicial system than many, many decades before that. Nevertheless, all the regional corruption that is

around it in different parts, and they have—intimidation that has

occurred to their attorney generals over the years, it is not just a

new problem, it’s been systemic.

But we also have to recognize that, like Congresswoman Sanchez

is saying, that this particular government is making progress; it’s

just really slow now that the court has set them back again, and

we have to figure out where we can bring the maximum amount

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of pressure to bear. And your testimony today is really helping to

do that.

I want to thank Mr. Deal, who really brought this committee’s

attention, as vice chairman of the committee. This is one of the

issues he wanted to focus on, and I will now yield to him for some

additional questions.

Mr. DEAL. Thank you, Mr. Chairman. And I too want to thank

this panel for your attendance. And Ms. March, I thank you personally because I know this is difficult for you to have to relive this

situation. Unfortunately, it is bad cases such as yours that sometimes call the American people’s attention to a problem, and that

it is of a magnitude that requires that the problem be addressed.

And that’s the purpose of this hearing today. And I thank you.

And I also want to thank the COPS organization that you referred to for their efforts. I think that is the only way that we educate the American public to the magnitude and the degree of severity that this problem presents to our citizens.

And to Mr. Fox and to Mr. Porter, thank you both not only for

being here but for what you do every day and trying to uphold the

laws of our country and of our States. You do a tremendous job.

And Mr. Porter is a neighbor of mine, and I do have a portion of

the county that he serves in now. And he does work with my son,

who is the district attorney in our home county, and so I get firsthand information as to the degree of these problems.

And I think it’s important that we point out that from a prosecutor’s standpoint, there are several options that they choose, and extradition is probably the very last option that they choose. Unfortunately, the option that many of them choose, and unfortunately it

is in the most severe cases, it is that alluded to by Mr. Porter: We

will take our chances that we will catch him back in the United

States, get him on our home territory.

Now, the other option, one of them, has also been alluded to, is

that they will defer prosecution in lieu of deportation. Unfortunately, as in the case of the perpetrator in the March case, deportation is not a permanent solution. Our borders are so porous, we do

such a poor job in being able to apprehend those who come across

illegally, that deportation simply means in some of those cases a

way to avoid punishment in the United States, to go home temporarily and then to return immediately back to our soil. None of

those are good solutions. And it all goes back to the fact that we

are in a situation where, in Mr. Fox’s testimony directly and in the

March case in particular, we have created and Mexico has created

an incentive to kill police officers, an incentive to not just burglarize the home, but if they show up while you are there, kill them

because you might get sent back if all you are guilty of is burglary;

but if you kill them, your chances of getting sent back and charged

in the United States are almost nothing. Now, nothing could be a

worse signal to our neighbor to the south nor to the world for us

to allow that condition to continue.

As you heard in my opening statement, I made reference to a

suggestion that I think we should seriously pursue—and I know

that this is going to require decisionmaking at a level far above

that of this subcommittee. But I think there is a reason to make

a distinction when we relate country to country to those citizens

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who have left our country legally and gone to another country that

has screened them and said, yes, we will let you in, and vice versa.

Here the tragedy is that in most of the cases of which I am personally familiar, the individual has already committed a crime, because they are not legally in our country. And to make no distinction in the issue of extradition between somebody who came into

a country illegally, where the country had no opportunity to screen

them, versus a decision where they did come in legally and the host

country did screen them, background check, criminal records, all of

the like, the perpetrator in the March case would never have

passed that kind of scrutiny to be legally admitted into our country. So when we don’t enforce our immigration laws, we invite that

multiplicity of criminal conduct.

And I just for one, think that if the Mexican Government—and

I do not wish to condemn them unduly. I think they are trying to

make progress. I commend them in the areas where they have

made progress. But, quite frankly, if they would spend as much

time and effort trying to get their extradition situation and their

cooperation and criminal prosecution straightened out as they have

spent trying to convince the banking and financial communities in

the United States to accept the Matricular Consular cards, we

would be much closer to a solution here.

So I don’t want to condemn their efforts, but I want to say I don’t

think they are making nearly enough. And they are our neighbor

to the south. As the old poem said, fences make good neighbors. We

can’t build the kind of fences that we need. We have already found

out that we can’t do that. But good neighbors cooperate in the enforcement of basic criminal laws and the administration of justice.

And I think Mexico has a long way to go in that regard.

I didn’t ask you any questions. I do appreciate your testimony.

I think that hopefully this is the first step in making not only this

Congress but also the people of this country more aware of the significance of this problem. And the truth of the matter is, we are

not really at the crest of that hill. That hill gets bigger every day.

The number of cases like we are talking about here are going to

get larger every year. And if we really had true records, it wouldn’t

be 25 cases or even 300 cases of extradition from Mexico, because

most prosecutors are realists. They know what their work demands

are, they know what their budgets are, and they are just not going

to spend time and effort and money where there is not going to be

a successful result in the long run. They can’t justify that.

Now, that is not to say the problem is not there. It’s to say the

problem is there, and the problem has no good solution. And I

think it’s up to this Congress to do what we can to try to solve that

problem. And it’s only through the testimony and the willingness

of people like you who will step out, tell the American people the

truth, tell them the realities that we sometimes don’t want to listen

to, that we have a chance to begin to make progress.

So I do thank all of you personally and very much for your testimony and your presence here today. And, Mr. Chairman, I especially want to thank you and the staff of this subcommittee for

making this issue a matter of attention to the subcommittee. It

would be a whole lot easier sometimes just to ignore these kinds

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of things and pretend that they are not a problem and they don’t

exist.

I continue to have the feeling that this is the No. 1 time bomb

waiting to explode in this country. And in my part of the world, as

Mr. Porter’s illustrations and even Mr. Fox’s illustrations were, to

some extent, much of the crime committed by Mexican residents

has been crime against other Mexican residents who are either

here legally or, in most cases, illegally. And those, unfortunately,

have to be looked at in a little different situation. They don’t

arouse the same kind of local uproar. Not that we tolerate it, not

that we like it. In Mr. Porter’s testimony, the cases that he alludes

to in my community, the driveby shootings, the bludgeoning deaths

of drug dealers, has pretty much been that kind of activity.

But wait until the victims are the victims like Officer March. You

wait until those cases begin to multiply, and I can assure you that

it will not be just a subcommittee of this committee holding hearings, it will be somebody demanding that somebody’s head roll because they haven’t done something at the time they should have

done to prevent it. I think we can hopefully make some progress

to avoid that time. Thank you very much.

Mr. SOUDER. Thank you.

I have one additional question for Mrs. March. In your testimony, you said that the murderer had been deported on three occasions for drug charges and was wanted for two other attempted

murders. Why didn’t INS tell you that they hadn’t held him? Did

you ever get a chance to ask them that question or did you ever

get any answer back?

Mrs. MARCH. Initially we just were told it was INS’s fault. They

said, no, it’s the Federal Government’s fault. I just got a lot of finger pointing. No one’s taken any sort of accountability. No one’s

tried to make their actions correct. I think there is obviously a broken link in the system, and no one’s taking fault for it. I have no

idea. And I feel like somebody allowed this man to kill my husband.

Mr. SOUDER. One of the things that I would like our subcommittee to do, and this isn’t—we pretty much know the answer to the

question. And that is, that when we deport, our information systems and our time or willingness to check everybody out, we are

just overwhelmed.

Mrs. MARCH. I understand.

Mr. SOUDER. But this is an incredible flaw that, by the way, was

also a flaw in September 11 and it has to be fixed. And I would

like to find out for the record officially why INS says they would

have deported somebody who had drug charges and was wanted for

two other attempted murders, and whether they just didn’t have

time to check it, whether the information system didn’t show because the murders were in other States, whether the drug charges

were insufficiently high and so we just kind of pretend like they

didn’t happen. Because this is a huge question.

I’m also on Homeland Security, and when we did our border report, our understanding was—is that you have got deported if your

only—and weren’t held if your only crime was illegal citizenship,

which, by the way, is also a crime. In other words, entering illegally. But supposedly they were supposed to be catching people and

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holding them if they had other charges. So the question is, what

is the breakdown or multiple breakdowns in our system? And we

know, in fact, we have a lot of them, and we are trying to fix them.

But I would like to know, because this is a pretty extraordinary

case, if it had that many different charges.

Mrs. MARCH. Well, it was kind of explained to me that somehow

the system failed. Evidently, you know, he would be sent back and

probably most likely not get any sort of punishment in Mexico. The

way they explained it to me was—and, unfortunately, I think it’s

very true—is crime rises. And unless you were able to look in a

crystal ball, you wouldn’t have thought this guy would be possible

for the crime that he did. He—evidently, I guess, when my husband pulled him over, he wasn’t going to go to jail again and it

didn’t matter, he was going to kill my husband, which he said he

would do to his prior friends—not him particularly, but any cop

that pulled him over.

So I think that was his initial plan to avoid the system. I think

he just got a little more courage along the way. And he was probably at the bottom of the stack as far as high threat. And, unfortunately, we don’t have enough law enforcement to keep up with the

pace of the criminals.

Mr. SOUDER. If somebody is wanted for two other attempted murders, we could keep track like that, you would think.

Mrs. MARCH. Yeah. Well, those—actually those two attempted

murders weren’t filed until after my husband was murdered. I

don’t know why. He actually got over the border that night, and

they suspected he was going to, and I don’t know why there wasn’t

more attention toward the border. There is so many things that I

don’t understand why it happened. And I can only imagine it’s so

I could be here and speak for the other 300 families.

Mr. SOUDER. I don’t know if you find this comforting or more

scary, but we have spent 2 years and we have held hearings all

across the north and south border, and I don’t understand either.

So I don’t know whether you find that encouraging or discouraging.

Mrs. MARCH. Well, you know what? I can see why people take

measures to hire, you know, bounty hunters. You don’t feel like the

justice system is going to do what they need to do, and you don’t

want him to keep on continuing to kill.

Mr. SOUDER. Well, we have an obligation, because that system

won’t work either. And it is happening somewhat on the southwest

border. But all it is doing is complicating the problem, as it has in

Colombia and in other countries, because pretty soon the bounty

hunters decide they can do a rogue business on their own as well,

and then you have multiple groups of terrorists.

We have an obligation to our citizens to do a better job, which

means we need, by the way, responsible immigration policies that

work, because we simply can’t hire enough Border Patrol people

right now to protect that whole border. But we have to take some

action for narcotics reasons, for murder reasons, for terrorist reasons, because the current system isn’t functioning, particularly if

they won’t extradite even if they have them.

Mrs. MARCH. They’ve left us no choice but to try to lure him in,

and that essentially gives him his freedom.

Mr. SOUDER. Well, thank you.

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Mrs. MARCH. We know exactly where he is at.

Mr. SOUDER. Well, we thank you for your testimony. I also want

to insert into the record Mr. Cummings’ testimony right after mine

as the ranking Democrat.

Anybody else have any additional comments?

Mr. FOX. Thank you.

Mr. SOUDER. Thank you very much for coming today. The subcommittee is now adjourned.

[Whereupon, at 12:29 a.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Elijah E. Cummings and additional information submitted for the hearing record follow:]

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