PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MIRELLA IVONNE AVILA-RAMOS, 

 Petitioner - Appellant, 

v. 

JOHN L. KAMMERZELL, United States 

Marshal for the District of Colorado; 

KENNETH DEAL, Acting United States 

Marshal for the District of Colorado, 

 Respondents - Appellees. 

No. 17-1014 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:16-CV-01221-WJM-KLM)

_________________________________ 

Robert T. Fishman of Ridley, McGreevy & Winocur, P.C., Denver, Colorado, for 

Petitioner-Appellant. 

J. Bishop Grewell, Assistant United States Attorney (and Robert C. Troyer, United States 

Attorney, on the brief), Denver, Colorado, for Respondents-Appellees. 

_________________________________ 

Before BACHARACH, KELLY, and MORITZ, Circuit Judges. 

_________________________________ 

KELLY, Circuit Judge. 

_________________________________ 

Petitioner-Appellant Mirella Ivonne Avila-Ramos appeals from the district 

court’s denial of habeas corpus relief from an extradition certification order. On 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 28, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

appeal, she challenges the magistrate judge’s and district court’s probable cause 

rulings. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm 

because the magistrate judge adequately found probable cause that Ms. Avila-Ramos 

committed aggravated homicide, the crime identified in the extradition request. 

Background 

Ms. Avila-Ramos is wanted for aggravated homicide in Chihuahua, Mexico. 

Supp. R. 26. According to the warrant for her arrest, Ms. Avila-Ramos plotted with 

Arturo Heriberto Herrera Rey, her paramour, to murder her husband. Id. at 38. Ms. 

Avila-Ramos’s husband, who had survived an earlier attempt on his life, was on his 

way to a hospital appointment when he was attacked and killed by a hired gun. Id. at 

31, 38. An investigation implicated Ms. Avila-Ramos and Mr. Rey in the hit, and 

Mr. Rey was convicted of aggravated homicide for his involvement in the crime. 

Def.’s Ex. B at 32, In re Extradition of Avila-Ramos, No. 1:15-mj-01087-NYW (D. 

Colo. Oct. 7, 2015), ECF No. 178-1. Now, Mexico requests Ms. Avila-Ramos’s 

extradition from the United States to face charges for her participation in the plot. 4 

R. 20–21; Supp. R. 43. 

After a hearing, a magistrate judge certified Ms. Avila-Ramos as extraditable. 

In re Extradition of Avila-Ramos, No. 1:15-mj-01087-NYW (D. Colo. May 6, 2016), 

ECF No. 181. Among the magistrate judge’s findings was that there was sufficient 

evidence to establish probable cause that Ms. Avila-Ramos committed aggravated 

homicide. Id. at 16. Ms. Avila-Ramos filed a petition for a writ of habeas corpus 
3 

challenging the extradition certification order, 1 R. 8, which the district court denied, 

Avila-Ramos v. Kammerzell, 228 F. Supp. 3d 1196, 1204 (D. Colo. 2017). In 

upholding the magistrate judge’s probable cause determination, though, the district 

court characterized Ms. Avila-Ramos’s offense as conspiring to murder her husband 

(rather than as aggravated homicide). See id. at 1203. 

On appeal, Ms. Avila-Ramos argues that (1) a finding of probable cause for 

conspiring to commit murder does not subject her to extradition for aggravated 

homicide, the offense identified in the extradition request, and (2) the magistrate 

judge based her probable cause determination on inadequate evidence. 

Discussion 

Habeas review of a probable cause determination in an extradition proceeding 

is limited to the narrow issue of “whether there was any evidence warranting the 

finding that there was reasonable ground to believe the accused guilty.” Peters v. 

Egnor, 888 F.2d 713, 717 (10th Cir. 1989) (quoting Fernandez v. Phillips, 268 U.S. 

311, 312 (1925)). In other words, the petitioner’s appeal “must fail if there is ‘any 

evidence of probable cause.’” Id. (quoting Theron v. U.S. Marshal, 832 F.2d 492, 

501 (9th Cir. 1987), abrogated on other grounds by United States v. Wells, 519 U.S. 

482 (1997)). On appeal, we “review the district court’s legal determinations de novo 

and its findings of fact for clear error.” Smith v. United States, 82 F.3d 964, 965 

(10th Cir. 1996). Here, where the district court made no additional factual findings 

concerning probable cause, our review of the district court’s judgment is purely de 
4 

novo. See Santos v. Thomas, 830 F.3d 987, 1001 (9th Cir. 2016) (“We review the 

district court’s judgment de novo. In this context, that means that, with respect to the 

extradition court, we stand in the same position as did the district court.” (citation 

omitted)). 

A. The Magistrate Judge Found Probable Cause for the Crime Identified in the 

Extradition Request 

Ms. Avila-Ramos first argues that she is not extraditable because probable 

cause was not found for the crime identified in the extradition request. The 

extradition request charges her with aggravated homicide, but she contends that 

probable cause was found for conspiracy to commit murder, which allegedly 

constituted an impermissible alteration of the charges underlying the extradition 

request. 

Ms. Avila-Ramos did not raise this argument in her habeas petition to the 

district court, presumably because the magistrate judge did find probable cause that 

Ms. Avila-Ramos committed aggravated homicide, the crime identified in the 

extradition request. See In re Extradition of Avila-Ramos, slip op. at 19 (“This court 

CERTIFIES to the United States Secretary of State that Respondent Mirella Ivonne 

Avila Ramos is extraditable for the charged offense of aggravated homicide pursuant 

to 18 U.S.C. § 3184 . . . .” (emphasis added)). The sole basis for her argument is that 

the district court inexplicably characterized her offense as conspiring to murder her 

husband, not as aggravated homicide. See Avila-Ramos, 228 F. Supp. 3d at 1197 

(“The United Mexican States (‘Mexico’) accuse Petitioner Mirella Ivonne Avila-
5 

Ramos (‘Avila-Ramos’) of conspiring to have her husband murdered in Mexico.” 

(emphasis added)); id. at 1203 (upholding the magistrate judge’s finding of probable 

cause that Ms. Avila-Ramos committed the offense of “conspiring to murder her 

husband” (emphasis added)). 

Ms. Avila-Ramos is not entitled to relief, however, simply because the district 

court mischaracterized the charge against her. The scope of our review is limited to 

the sufficiency of the magistrate judge’s order, which we review without deference to 

the district court’s legal determinations. See Santos, 830 F.3d at 1001; Smith, 82 

F.3d at 965. As the magistrate judge unambiguously found probable cause for the 

offense identified in the extradition request (aggravated homicide), the charges 

contained in the extradition request have not been altered.1

B. The Magistrate Judge’s Probable Cause Determination Was Adequate 

Next, Ms. Avila-Ramos contests the adequacy of the magistrate judge’s 

probable cause determination. She argues that (1) although the government produced 

evidence that she conspired to kill her husband, it did not produce any evidence that 

 1

 Ms. Avila-Ramos also invokes the “rule of specialty,” stating that it “does 

not allow for trial on” charges other than those identified in the extradition request. 

Aplt. Br. at 10. The rule of specialty in the extradition treaty between the United 

States and Mexico provides that “[a] person extradited under the present Treaty shall 

not be detained, tried or punished in the territory of the requesting Party for an 

offense other than that for which extradition has been granted.” Extradition Treaty 

Between the United States of America and the United Mexican States art. 17, Mex.-

U.S., May 4, 1978, 31 U.S.T. 5059. Ms. Avila-Ramos has misapplied the rule, “as it 

relates to prosecution rather than extradition.” Peters, 888 F.2d at 720 n.9. Whether 

Ms. Avila-Ramos’s eventual prosecution violates the rule of specialty is for the 

Mexican courts to address. 
6 

she was directly responsible for her husband’s death and (2) the magistrate judge 

relied on improper evidence, namely the criminal proceedings against Mr. Rey. 

The first issue is whether, as a matter of law, the magistrate judge could have 

found probable cause that Ms. Avila-Ramos committed aggravated homicide from 

the evidence in the extradition request.2

 Ms. Avila-Ramos argues that the evidence 

supports, at most, a conspiracy to kill her husband, which is a distinct offense from 

aggravated homicide. But Ms. Avila-Ramos ignores the fact that conspiring to 

commit a crime is also a theory of liability for the substantive offense. See United 

States v. Bowen, 527 F.3d 1065, 1077 & n.10 (10th Cir. 2008) (describing Pinkerton 

coconspirator liability); see also United States v. Zackery, 494 F.3d 644, 649 (8th 

Cir. 2007) (holding that a defendant does not need to be charged as a conspirator to 

be convicted of a substantive offense based on Pinkerton coconspirator liability). 

The same holds true for aiding and abetting the commission of a crime. See Bowen, 

527 F.3d at 1077 & n.10; see also United States v. Day, 700 F.3d 713, 722 (4th Cir. 

2012) (ruling that “aiding and abetting is a theory of liability, not a separate offense,” 

and that the rule of specialty in the extradition treaty between the United States and 

 2

 The extradition treaty between the United States and Mexico provides that 

extradition may be granted only if, according to the laws of the requested country, 

there would be sufficient evidence to bring the accused to trial if he or she had 

committed the offense in the requested country. Extradition Treaty art. 3. 

Accordingly, the relevant inquiry is whether there would be sufficient evidence under 

U.S. law to bring Ms. Avila-Ramos to trial if she had committed the offense in the 

United States, the requested country. See Eain v. Wilkes, 641 F.2d 504, 507–08 (7th 

Cir. 1981) (concluding that nearly identical language in the extradition treaty 

between the United States and Israel “require[d] a finding of probable cause under 

federal law”). 
7 

Mexico does not require the requesting state to specify a particular theory of 

liability). As a result, the government did not need to produce evidence that Ms. 

Avila-Ramos was directly responsible for her husband’s death; it could produce 

evidence of coconspirator or aiding and abetting liability instead. 

Here, either theory supports the magistrate judge’s probable cause 

determination. The extradition request contains sworn statements from family 

members, a private investigator, forensics experts, and Mexican law enforcement 

officers, which together allege that Ms. Avila-Ramos (1) was having an affair with 

Mr. Rey, who arranged the assassination; (2) paid the gunman by helping him 

burglarize her husband’s house; and (3) reported her husband’s whereabouts to Mr. 

Rey to facilitate the assassination. See 4 R. 20–27; Supp. R. 146–242, 253–61. In 

short, the request alleges that Ms. Avila-Ramos was part of — and assisted in — an 

agreement to kill her husband. Consequently, the evidence provides grounds to 

believe that Ms. Avila-Ramos is liable for her husband’s death either as a 

coconspirator or as an aider and abettor. 

The second issue is whether the magistrate judge relied on improper evidence 

when determining probable cause. When reviewing the sufficiency of evidence in an 

extradition proceeding, a magistrate judge’s role is “to determine whether there is 

competent evidence to justify holding the accused to await trial, and not to determine 

whether the evidence is sufficient to justify a conviction.” Peters, 888 F.2d at 717 

(quoting Collins v. Loisel, 259 U.S. 309, 316 (1922)). Notably, the Federal Rules of 

Evidence do not apply to extradition proceedings, Fed. R. Evid. 1101(d)(3), and 18 
8 

U.S.C. § 3190 provides that properly authenticated depositions, warrants, or other 

papers are admissible evidence. Ms. Avila-Ramos does not challenge the 

authenticity of the documents in Mexico’s extradition request. She argues, however, 

that the magistrate judge improperly relied on documents from Mr. Rey’s trial in 

Mexico. 

In Mr. Rey’s trial, the Mexican court found that Mr. Rey and Ms. Avila-Ramos 

“undoubtedly” conspired to kill her husband. Def.’s Ex. B at 22–23. According to 

the magistrate judge, this evidence was “the most persuasive support for the finding 

of probable cause,” particularly because the trial was conducted in Spanish, thereby 

addressing Ms. Avila-Ramos’s concerns about translation and reliability issues in the 

extradition request’s documents. In re Extradition of Avila-Ramos, slip op. at 17. 

Ms. Avila-Ramos likens this evidence to a conviction rendered in absentia and 

contends that such a conviction should be treated merely as a charge, which does not 

establish probable cause by itself. Her argument is unavailing, though, for two 

reasons. 

First, her analogy to an in absentia proceeding is inapt. A trial in absentia is a 

trial held without the accused. Trial In Absentia, Black’s Law Dictionary (10th ed. 

2014). Mr. Rey was present for his trial, and the Mexican court convicted him, not 

Ms. Avila-Ramos. Therefore, the proceedings were not in absentia, and the policy 

reasons for treating them as a charge (rather than as evidence) do not apply. Instead, 

the proceedings are more accurately categorized as hearsay: they contain out-of-court 

statements that are being offered for the truth therein, and Ms. Avila-Ramos did not 
9 

have the opportunity to cross-examine the declarants. As the rule against hearsay 

does not apply in extradition proceedings, see Fed. R. Evid. 1101(d)(3), the 

magistrate judge could properly consider the criminal proceedings against Mr. Rey. 

Second, Ms. Avila-Ramos’s appeal fails if there was any evidence of probable 

cause, see Peters, 888 F.2d at 717, and the criminal proceedings against Mr. Rey 

were not the only evidence that the magistrate judge considered. The magistrate 

judge cited a variety of evidence from the extradition request, including (1) text 

messages, (2) phone records, and (3) statements of a private investigator, a Mexican 

law enforcement officer, and Mr. Rey. In re Extradition of Avila-Ramos, slip op. at 

15–17. This evidence independently supported the magistrate judge’s probable cause 

finding, and Ms. Avila-Ramos’s appeal consequently fails. 

AFFIRMED.