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-C V-01221-WJM-KLM)

________________ _________________ Robert T. Fishman of Ridley, McGreevy & Winocur, P.C., Denv er, Colorado, for Petitioner-Appellant. J. Bishop Grewell, Assistant United States Atto rney (and Robert C. Troyer, United States Attorney, on the brief), Denver, Co lorado, for Respondents-Appellees.

________________ _________________ Before BACHARACH , KELLY , and MORITZ , Circuit Judges.

________________ _________________ KELLY , Circuit Judge.

________________ _________________ Petitioner-Appellant Mirell a Ivonne Avila-Ramos a ppeals 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 Court2 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 th at Ms. Avila-Ramos committed aggravated homic ide, the crime identified in the extradition request.

Background Ms. Avila-Ramos is wanted for aggrav ated homicide in Chihuahua, Mexico. Supp. R. 26. According to the warrant fo r 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. Re y in the hit, and Mr. Rey was convicted of aggravated homic ide for his involvement in the crime. Def.’s Ex. B at 32, In re Extraditi on of Avila-Ramos, No. 1:15-mj-01087-NYW (D. Colo. Oct. 7, 2015), ECF No. 178-1. No w, Mexico requests Ms. Avila-Ramos’s extradition from the United States to face charges for her part icipation in the plot. 4 R. 20–21; Supp. R. 43. After a hearing, a magistra te judge certified Ms. Avil a-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 judg e’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 fo r a writ of habeas corpus3 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 determinat ion, though, the district court characterized Ms. Avila-Ramos’s offe nse 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 subj ect her to extradition for aggravated homicide, the offense identif ied in the extradition request , and (2) the magistrate judge based her probable cause determination on inadequate evidence.

Discussion Habeas review of a probable cause dete rmination in an extradition proceeding is limited to the narrow i ssue 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 Ferna ndez v. Phillips, 268 U.S. 311, 312 (1925)). In other words, the peti tioner’s appeal “must fa il if there is ‘any evidence of probable cause.’” Id. (quotin g Theron v. U.S. Ma rshal, 832 F.2d 492, 501 (9th Cir. 1987), abrogated on other grou nds by United States v. Wells, 519 U.S. 482 (1997)). On appeal, we “review the di strict court’s legal determinations de novo and its findings of fact for clear error.” Smith v. Un ited States, 82 F.3d 964, 965 (10th Cir. 1996). Here, wher e the district court made no additional factual findings concerning probable cause, our review of th e district court’s judgment is purely de4 novo. See Santos v. Thomas , 830 F.3d 987, 1001 (9th Ci r. 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 pos ition as did the district court.” (citation omitted)). A. The Magistrate Judge Found Probable Ca use 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 th e crime identified in the extradition request. The extradition request charges her with aggrav ated 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 ar gument in her habeas petition to the district court, presumably because the magistra te 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 Respo ndent 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 inexplicab ly 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 Mi rella Ivonne Avila-5 Ramos (‘Avila-Ramos’) of conspiring to ha ve 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 magistra te 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 magi strate judge unambiguously f ound probable cause for the offense identified in the ex tradition request (aggravat ed homicide), the charges contained in the extradition re quest have not been altered. 1
B. The Magistrate Judge’s Probable Cause Determination Was Adequate Next, Ms. Avila-Ramos contests the ad equacy of the magistrate judge’s probable cause determination. She argues th at (1) although the government produced evidence that she conspired to kill her hus band, 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 trea ty between the United States and Mexico provides th at “[a] person extradited un der 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 extradit ion has been granted.” Extradition Treaty Between the United States of America and the United Mexican Stat es 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 viol ates the rule of sp ecialty is for the Mexican courts to address.6 she was directly responsible for her husband’s death a nd (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-Ram os committed aggravated homicide from the evidence in the extradition request. 2 Ms. Avila-Ramos ar gues that the evidence supports, at most, a conspir acy to kill her husband, whic h is a distinct offense from aggravated homicide. But Ms. Avila-Ramos ignores the fact that conspiring to commit a crime is also a theo ry of liability for the subs tantive 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 defe ndant does not need to be ch arged as a conspirator to be convicted of a substantive offense ba sed on Pinkerton cocons pirator liability). The same holds true for aidi ng 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 ab etting is a theory of liabili ty, not a separate offense,” and that the rule of specia lty in the extradition treaty between the United States and

2 The extradition treaty between the Un ited States and Mexi co 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 whet her there would be sufficient evidence under U.S. law to bring Ms. Avila-Ramos to tria l 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 iden tical language in the extradition treaty between the United States and Israel “re quire[d] a finding of probable cause under federal law”).7 Mexico does not require th e 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 fo r her husband’s deat h; it could produce evidence of coconspirator or aidi ng and abetting liability instead. Here, either theory supports the magistrate judge’s probable cause determination. The extradition request c ontains sworn statements from family members, a private investigator, forensic s experts, and Mexi can law enforcement officers, which together alle ge 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 hous e; and (3) reported her hus band’s whereabouts to Mr. Rey to facilitate the a ssassination. See 4 R. 20–27; Su pp. R. 146–242, 253–61. In short, the request alleges th at Ms. Avila-Ramos was part of — and assisted in — an agreement to kill her husband. Conseque ntly, the evidence pr ovides 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 magist rate judge relied on improper evidence when determining probable cause. When revi ewing 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 awa it trial, and not to determine whether the evidence is suffi cient to justify a convicti on.” Peters, 888 F.2d at 717 (quoting Collins v. Loisel, 259 U. S. 309, 316 (1922)). Nota bly, the Federal Rules of Evidence do not apply to extradition proceed ings, Fed. R. Evid. 1101(d)(3), and 188 U.S.C. § 3190 provides that properly auth enticated depositions, warrants, or other papers are admissible ev idence. Ms. Avila-Ramos does not challenge the authenticity of the documents in Mexico’s extradition request. She argues, however, that the magistrate judge improperly relie d 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 ki ll her husband. Def.’s Ex. B at 22–23. According to the magistrate judge, this ev idence was “the most persua sive support for the finding of probable cause,” particularly because th e 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 Extr adition of Avila-Ramos, slip op. at 17. Ms. Avila-Ramos likens this evidence to a conviction rendere d in absentia and contends that such a convic tion 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 ab sentia proceeding is inapt. A trial in absentia is a trial held without the accuse d. 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 evid ence) do not apply. Instead, the proceedings are more accu rately categorized as hearsa y: they contain out-of-court statements that are being offered for the truth therein, and Ms . Avila-Ramos did not9 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 properl y consider the criminal pr oceedings against Mr. Rey. Second, Ms. Avila-Ramos’s appeal fails if there was any ev idence of probable cause, see Peters, 888 F.2d at 717, and the criminal proceedings against Mr. Rey were not the only evidence that the magist rate judge considered . The magistrate judge cited a variety of evidence from the extradition request, including (1) text messages, (2) phone records, and (3) statem ents of a private i nvestigator, a Mexican law enforcement officer, and Mr . Rey. In re Extradition of Avila-Ramos, slip op. at 15–17. This evidence indepe ndently supported the magist rate judge’s probable cause finding, and Ms. Avila-Ramos’s appeal consequently fails.
AFFIRMED.