FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS MUNOZ SANTOS,

Petitioner-Appellant,

v.

LINDA R. THOMAS, Warden,

Respondent-Appellee.

No. 12-56506

D.C. No.

2:11-cv-06330-MMM

OPINION

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

November 20, 2014—Pasadena, California

Filed March 9, 2015

Before: Mary M. Schroeder and Jacqueline H. Nguyen,

Circuit Judges, and Jack Zouhary, District Judge.*

Opinion by Judge Nguyen

* The Honorable Jack Zouhary, District Judge for the U.S. District Court

for the Northern District of Ohio, sitting by designation.
2 MUNOZ SANTOS V. THOMAS

SUMMARY**

Habeas Corpus/Extradition

The panel affirmed the district court’s denial of habeas

relief from a magistrate judge’s order certifying Jose Munoz

Santos’ extradition to Mexico on kidnapping charges.

The panel held that the magistrate judge, serving as the

extradition court, properly excluded from its probable cause

determination evidence that two witnesses, who had provided

key inculpatory statements, later recanted and stated their

statements were obtained by torture. The panel explained

that in a case like this one, where torture allegations are

inextricably intertwined with the witnesses’ recantations, the

evidence was properly excluded because its consideration

would have required a mini-trial on whether the witnesses’

initial statements were procured by torture.

The panel concluded that the district court properly

denied the habeas petition because the extradition court’s

probable cause determination was supported by competent

evidence.

COUNSEL

Matthew B. Larsen (argued), Deputy Federal Public

Defender, and Sean K. Kennedy, Federal Public Defender,

Los Angeles, California, for Petitioner-Appellant.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MUNOZ SANTOS V. THOMAS 3

Aron Ketchel (argued), and Robert E. Dugdale, Chief,

Criminal Division, Assistant United States Attorneys, and

André Birotte Jr., United States Attorney, Los Angeles,

California, for Respondent-Appellee.

OPINION

NGUYEN, Circuit Judge:

Jose Munoz Santos (“Munoz”) appeals the district court’s

denial of habeas relief from a magistrate judge’s order

certifying his extradition to Mexico on kidnapping charges. 

He argues that the magistrate judge erroneously excluded

evidence that two witnesses, who had provided key

inculpatory statements, later recanted and stated that their

statements were obtained by torture. We find no error. The

evidence of torture was, as Munoz concedes, inextricably

intertwined with the witnesses’ recantations. As a result,

considering the witnesses’ claims of torture would have

required the magistrate judge, serving as the extradition court,

to weigh conflicting evidence and make credibility

determinations. Under these circumstances, the extradition

court properly excluded this evidence. We affirm.

BACKGROUND

A. Evidence Supporting the Extradition Certification

In support of its extradition request, the government of

Mexico provided statements from five witnesses implicating

Munoz in the alleged kidnapping for ransom of Dignora

Hermosillo Garcia (“Hermosillo”) and her two children. 

According to Hermosillo, she and her two young daughters
4 MUNOZ SANTOS V. THOMAS

were abducted from their home in the evening of August 18,

2005, by a masked man holding a gun. She later identified

Fausto Librado Rosas Alfaro (“Rosas”) as the masked

gunman. Rosas forced Hermosillo and her children into

Hermosillo’s jeep and drove them away at high speed. Rosas

tugged on his mask as he drove and Hermosillo saw that he

had a large mark, like a mole or a scar, on his nose. Rosas

asked her for information about her husband’s work and daily

routine, and later, for her bank card PIN number. At one

point, Rosas stopped the vehicle to tape his captives’ mouths,

hands, and feet. He eventually took one child out of the car

and abandoned her, and later did the same to the second child. 

After more driving, he left Hermosillo tied up by a tree. The

younger of Hermosillo’s daughters was later found dead. 

Hermosillo’s husband, Roberto Castellanos Meza

(“Castellanos”), confirmed that his wife and daughters went

missing in the evening of August 18, 2005.

Rosas gave a statement, dated March 27, 2006, admitting

to being the masked gunman who abducted Hermosillo and

her daughters. He identified petitioner Munoz as a chief

orchestrator of the kidnapping, and attested to the

participation of Jesus Servando Hurtado Osuna (“Hurtado”). 

Hurtado also gave a statement, dated March 14, 2006, in

which he admitted to his role as the lookout on the day of the

kidnapping. Hurtado corroborated Rosas’ identification of

Munoz as an orchestrator of the scheme.

Finally, the Mexican government provided a statement of

Benigno Andrade Hernandez (“Andrade”), asserting that

Rosas and Munoz approached him in early August 2005 to

help them pull a “job” that involved asking “Beto” for 2

million pesos. The parties do not dispute that “Beto” is a
MUNOZ SANTOS V. THOMAS 5

common nickname for “Roberto,” the first name of

Hermosillo’s husband.

Based on these five statements—of Hermosillo,

Castellanos, Rosas, Hurtado, and Andrade—the extradition

court found that there was probable cause to believe that

Munoz was guilty of the alleged kidnapping, and accordingly

certified extradition. In re Extradition of Santos, 795 F.

Supp. 2d 966, 979–83 (C.D. Cal. 2011).

B. Excluded Statements

In certifying extradition, the extradition court excluded

from its consideration the following six statements—four

from Hurtado, and two from Rosas. Id. at 987–90.

On March 22, 2006, Hurtado stated that he “do[es] not

ratify” his prior statement implicating Munoz because it was

signed “upon torture,” and is “false.” The remainder of the

statement details the torture and other abuse that he suffered. 

In a statement dated May 25, 2006, Hurtado stated that his

prior statement of October 12, 2005, was made “under

torture.”1 Hurtado also denied any involvement in the alleged

kidnapping. Next, on November 21, 2006, Hurtado asserted

that on August 18, 2005 (the day of the alleged kidnapping),

a taxi driver took him to a location where he had been

performing carpentry work. He stated that he was tortured,

1 The extradition court did not address Hurtado’s October 12, 2005

statement, which contains a dramatically different description of the

events on the day of the alleged kidnapping, but also makes no allegations

of torture. Munoz does not contend that the extradition court’s silence as

to this statement constitutes error. We therefore express no view on the

significance, or lack thereof, of Hurtado’s October 12, 2005 statement.
6 MUNOZ SANTOS V. THOMAS

and presented with a written statement, which he signed. He

was told that he would be killed if he changed his statement. 

Finally, on June 10, 2009, Hurtado stated that he does not

know Munoz or Rosas. He also renewed his claims that he

was subjected to torture and beatings.

Similarly, Rosas stated on May 25, 2006, that he was

“forced to sign” his prior statement implicating Munoz and

others in the alleged kidnapping, under “physical and oral”

pressure, including threats to the wellbeing of his family. 

Rosas added that he wished to “retract” his prior statement. 

On June 20, 2006, Rosas elaborated on the threats made

against his family, and “den[ied] the parts” of his prior

statement that implicated him in the kidnapping.

The extradition court excluded these statements from its

probable cause determination. Relying on Barapind v.

Enomoto, 400 F.3d 744, 749 (9th Cir. 2005) (en banc) (per

curiam), the extradition court stated:

recantation evidence is contradictory

evidence, and . . . the complex, nuanced factintensive inquiry into the comparative

reliability of inculpatory statements and

recantations, including the circumstances

under which the statements were obtained, is

appropriately reserved for determination by

courts of the requesting state, which have

access to the full panoply of evidence.

In re Extradition of Santos, 795 F. Supp. 2d at 989 (citing

Barapind, 400 F.3d at 749).
MUNOZ SANTOS V. THOMAS 7

Munoz then petitioned for a writ of habeas corpus in the

district court. He argued that the extradition court’s probable

cause determination was not supported by competent

evidence because it failed to consider evidence of torture. 

The district court denied relief, concluding that Rosas’ and

Hurtado’s assertions of torture were “inextricably

intertwined” with their recantations and therefore were

properly excluded. This appeal followed.

JURISDICTION AND STANDARD OF REVIEW

The extradition court had jurisdiction pursuant to

18 U.S.C. § 3184. The district court had jurisdiction pursuant

to 28 U.S.C. § 2241(a), and we have jurisdiction pursuant to

28 U.S.C. §§ 1291 and 2253(a). As relevant here, “[t]he

district court’s habeas review of an extradition order is

limited to whether . . . there is any competent evidence

supporting the probable cause determination of the

[extradition court].” Vo v. Benov, 447 F.3d 1235, 1240 (9th

Cir. 2006) (internal quotation marks omitted). We review de

novo the district court’s decision denying a habeas petition. 

Prasoprat v. Benov, 421 F.3d 1009, 1013 (9th Cir. 2005).

DISCUSSION

A. Limited Nature of Extradition Proceedings

Extradition from the United States begins when a foreign

nation lodges a request directly with the United States

Department of State. Vo, 447 F.3d at 1237. After the State

Department evaluates whether the request falls within the

scope of the relevant extradition treaty, a United States

Attorney seeks an arrest warrant in federal district court for

the person sought. Blaxland v. Commonwealth Dir. of Pub.
8 MUNOZ SANTOS V. THOMAS

Prosecutions, 323 F.3d 1198, 1207 (9th Cir. 2003). If a

judicial officer—usually a magistrate judge—finds that there

is probable cause to “sustain the charge under the provisions

of the proper treaty or convention,” 18 U.S.C. § 3184, the

officer certifies to the Secretary of State that the person is

extraditable, Blaxland, 323 F.3d at 1208.

Extradition proceedings are limited affairs, akin to

“preliminary examinations . . . for the purpose of determining

whether a case is made out which will justify the holding of

the accused.” Charlton v. Kelly, 229 U.S. 447, 460 (1913)

(quoting Benson v. McMahon, 127 U.S. 457, 463 (1888)). A

person facing extradition maypresent evidence that “explains

away or completely obliterates probable cause . . . whereas

evidence that merely controverts the existence of probable

cause, or raises a defense, is not admissible.” Mainero v.

Gregg, 164 F.3d 1199, 1207 n.7 (9th Cir. 1999), superseded

by statute on other grounds, Pub. L. No. 105-277, § 2242. 

This rule rests on the principle that a foreign government

seeking extradition should not be forced “to produce all its

evidence [before the extradition court in the United States],

both direct and rebutting, in order to meet the defense thus

gathered from every quarter,” thereby converting the

extradition proceeding “into a full trial on the merits.” 

Collins v. Loisel, 259 U.S. 309, 316 (1922) (quoting In re

Wadge, 15 F. 864, 866 (S.D.N.Y. 1883)). Thus, although

“[a]dmission of evidence proffered by the fugitive at an

extradition proceeding is left to the sound discretion of the

court,” the exercise of that discretion is “guided of course by

the principle that evidence of facts contradicting the

demanding country’s proof or establishing a defense may

properly be excluded.” Hooker v. Klein, 573 F.2d 1360, 1369

(9th Cir. 1978).
MUNOZ SANTOS V. THOMAS 9

B. “Explanatory” versus “Contradictory” Evidence

Courts have struggled to explain the distinction between

admissible “explanatory” or “obliterating” evidence on the

one hand, and inadmissible “contradictory” evidence on the

other. See, e.g., In re Extradition of Strunk, 293 F. Supp. 2d

1117, 1122 (E.D. Cal. 2003) (describing the distinction

between these types of evidence as “metaphysical”). We

need not wade into that issue in great depth, however, as our

decision in Barapind largely guides our analysis in this case.

In Barapind, a district judge, sitting as an extradition

court pursuant to 18 U.S.C. § 3184, certified Kulvir Singh

Barapind’s extradition to India. 400 F.3d at 746–47. The

government of India sought Barapind’s extradition due to his

involvement in several incidents as a member of the All India

Sikh Student Federation, a group “dedicated to establishing

an independent sovereign Sikh nation.” Id. at 747. In one of

the incidents, Barapind allegedly “drove a scooter while a

gunman riding with him killed one man and wounded

another.” Id. at 749. India relied heavily on the affidavit of

Makhan Ram, a witness who identified Barapind as the driver

of the scooter. In re Extradition of Singh, 170 F. Supp. 2d

982, 1004–05, 1024 (E.D. Cal. 2001).

In the extradition court, Barapind offered another affidavit

from Ram, in which Ram “denie[d] ever having made a

statement implicating Barapind or having seen him at the

scene of the attack.” Id. at 1024. The extradition court noted

Ram’s “potential bias against India” based on a claim that he

previously had been falsely accused of a crime by the police. 

Id. The court also pointed to a lack of information

concerning the circumstances under which the subsequent

affidavit was taken, and about Ram’s “background or
10 MUNOZ SANTOS V. THOMAS

political views to enable evaluation of his motives and

possible bias.” Id. The extradition court then certified Ram’s

extradition, concluding that Ram’s “recantation is conflicting

and inconsistent with his earlier alleged statements,” and that,

“[u]nder all the circumstances, the credibility of Makhan

Ram’s recantation cannot be determined without a trial.” Id.

We affirmed the certification of extradition as to the

charges relating to the above incident. In an en banc ruling,

we held that an extradition court may properly exclude

recantations or other conflicting statements if consideration

of such evidence would require the court to weigh conflicting

evidence or make credibility determinations. Barapind,

400 F.3d at 749–50; see also Quinn v. Robinson, 783 F.2d

776, 815 (9th Cir. 1986) (noting that an extradition court

“does not weigh conflicting evidence and make factual

determinations”). We concluded:

The extradition court was supported by

competent evidence in finding that Barapind

did not obliterate India’s showing of probable

cause, as [Ram’s] more recent affidavit

constituted conflicting evidence, the

credibility of which could not be assessed

without a trial. Because extradition courts do

not weigh conflicting evidence in making

their probable cause determinations, we find

no basis for overturning the extradition

court’s decision that probable cause of

Barapind’s guilt existed . . . .
MUNOZ SANTOS V. THOMAS 11

Barapind, 400 F.3d at 749–50 (citation, internal quotation

marks, and brackets omitted).2

C. The Recantation Evidence was Properly Excluded

Here, like Ram’s second affidavit in Barapind, the

subsequent statements of Rosas and Hurtado are recantations;

they directly contradict or otherwise challenge these

witnesses’ initial inculpatory statements.3 Rosas stated that

he wished to “retract” his prior statement, and that he

“den[ied]” the parts of the statement that implicated him. 

Hurtado asserted that he “do[es] not ratify” his initial

statement, had “nothing to do” with the alleged kidnapping,

was performing carpentry work on the day of the alleged

kidnapping, and did not know Munoz or Rosas. Determining

whether to credit these subsequent statements or Rosas’ and

Hurtado’s initial inculpatory statements would have required

the extradition court to weigh conflicting evidence and make

credibility findings. We therefore conclude that the

2 Barapind’s analysis of recantation evidence is largely consistent with

the approach of other circuit courts that have addressed this issue. See

Hoxha v. Levi, 465 F.3d 554, 561–62 (3d Cir. 2006) (holding that the

extradition court did not abuse its discretion in excluding a recantation

given that the original statement was independently corroborated, and the

recantation “provided an alternative and contradictory narrative that can

properly be presented at trial”); Eain v. Wilkes, 641 F.2d 504, 511–12 (7th

Cir. 1981) (holding that the extradition court properly excluded statements

offered by a person challenging extradition because the statements “tend

to contradict or challenge the credibility of the facts implicating

petitioner,” and that “such a contest should be resolved at trial” in the

country seeking extradition).

3 A recantation is a “retraction” or a “disavowal.” Recantation, Oxford

English Dictionary, www.oed.com/view/Entry/159345?redirectedFrom=

recantation#eid (last visited Feb. 2, 2015).
12 MUNOZ SANTOS V. THOMAS

extradition court properly excluded these subsequent

statements because they constitute inadmissible recantations. 

See Barapind, 400 F.3d at 749–50.4 Since Munoz’s only

challenge to the extradition court’s probable cause

determination is based on the exclusion of these recantations,

we likewise conclude that the probable cause determination

was supported by competent evidence. Cf. Quinn, 783 F.2d

at 815 (“[O]n review we can determine onlywhether, because

of an absence of competent evidence, the magistrate’s

[probable cause] determination is wrong as a matter of law.”).

Munoz argues that two of the challenged statements—

Rosas’ statement of May 25, 2006, and Hurtado’s statement

of March 22, 2006—offer no alternate factual account of the

kidnapping to compete with the version of events relied on by

Mexico in support of its extradition request. According to

Munoz, the recanting statements should not have been

precluded as “contradictory” evidence because in these

statements, Rosas and Hurtado simply reject their prior

inculpatory statements on the ground that they were procured

by torture. Munoz’s argument is foreclosed by Barapind

because there, Ram’s recantation also did not offer a

competing factual narrative. See 400 F.3d at 749. Rather,

Ram stated that he never identified Barapind and was forced

by the police to sign a blank sheet of paper. Id. We

nonetheless found no error in the extradition court’s

conclusion that it could not resolve the conflict between

4 This conclusion is bolstered by the fact that, like in Barapind, Rosas

and Hurtado had an incentive to falsely recant, as they presumably faced

criminal liability stemming from their own participation in the alleged

kidnapping. Cf. In re Extradition of Singh, 170 F. Supp. 2d at 1024

(noting the recanting witness’s reasons for bias against the Indian

government).
MUNOZ SANTOS V. THOMAS 13

Ram’s affidavits without a trial. Id. at 749–50. The same

analysis applies here.

Next, Munoz contends that evidence procured by torture

is necessarily not “competent evidence” that can support a

determination of probable cause. It is beyond dispute that the

use of evidence obtained by torture is “unspeakably

inhumane,” Boumediene v. Bush, 476 F.3d 981, 1006 (D.C.

Cir. 2007) (Rogers, J., dissenting), judgment vacated, Al

Odah v. United States, 282 F. App’x 844 (D.C. Cir. 2008),

and evidence obtained by torture is inadmissible in domestic

criminal proceedings, cf. Crowe v. County of San Diego,

608 F.3d 406, 433 (9th Cir. 2010). Here, however, we agree

with the district court that the allegations of torture are

“inextricably intertwined” with Rosas’ and Hurtado’s

recantations. Each recantation includes both a disavowal of

the witness’s prior inculpatory statements, as well as

allegations that the statements were procured by torture. 

Indeed, Munoz concedes that the district court correctly

characterized the evidence as “inextricably intertwined,” and

that Rosas and Hurtado are essentially saying, “I was tortured

so the things I said the first time are not credible.” Thus, in

order to evaluate Rosas’ and Hurtado’s torture allegations, the

extradition court would necessarily have had to evaluate the

veracity of the recantations and weigh them against the

conflicting inculpatory statements. Doing so would have

exceeded the limited authority of the extradition court. See

Barapind, 400 F.3d at 749–50; Quinn, 783 F.2d at 815.

We recognize that several extradition courts in this

Circuit have, at times, elected not to rely on evidence

allegedly obtained by torture, or have considered allegations

of torture but found them to be unreliable. See CornejoBarreto v. Seifert, 218 F.3d 1004, 1008 (9th Cir. 2000),
14 MUNOZ SANTOS V. THOMAS

overruled on other grounds, Trinidad y Garcia v. Thomas,

683 F.3d 952 (9th Cir. 2012); Mainero, 164 F.3d at 1206

(noting that the extradition court considered allegations of

torture, but ultimately found that there was “no reliable

evidence of torture or duress”). Indeed, Munoz cites a

different passage in Barapind, where we endorsed the

extradition court’s “incident-by incident” consideration of

whether certain evidence was fabricated or procured by

torture. See 400 F.3d at 748. Some courts in other circuits

have taken similar approaches. E.g., Atuar v. United States,

156 F. App’x 555, 563 (4th Cir. 2005) (noting that the

extradition court “correctly considered” evidence that a prior

inculpatory statement was obtained by torture, but found that

evidence to be less reliable than the initial inculpatory

statement); Matter of Extradition of Contreras, 800 F. Supp.

1462, 1469 (S.D. Tex. 1992) (finding recantations alleging

torture to be more credible than initial inculpatory

statements).

However, none of these cases stands for the proposition

that an extradition court must accept as true allegations of

torture whenever they are raised, nor do they endorse the

weighing of evidence by an extradition court. Rather, these

cases reflect the highly fact-intensive nature of these

proceedings, and the well-established principle that

“[a]dmission of evidence proffered by the fugitive at an

extradition proceeding is left to the sound discretion of the

[extradition] court.” Hooker, 573 F.2d at 1369. Under the

appropriate circumstances, an extradition court may exercise

its discretion to consider allegations of torture. But in a case

like this one, where torture allegations are inextricably

intertwinedwith thewitnesses’ recantations, the evidence was

properly excluded because its consideration would require a

mini-trial on whether the initial statements of Rosas and
MUNOZ SANTOS V. THOMAS 15

Hurtado were procured by torture. See Barapind, 400 F.3d at

749–50.5

CONCLUSION

The extradition court did not abuse its discretion in

excluding Rosas’ and Hurtado’s statements alleging torture

as contradictory evidence. In turn, the district court properly

denied Munoz’s habeas petition because the extradition

court’s probable cause determination was supported by

competent evidence.

AFFIRMED.

 

5

 The government asserts that any evidence proffered or relied on by a

person facing extradition is per se inadmissible if it requires the

extradition court to resolve a factual dispute as to any matter. We need

not address this contention because we resolve the case on much narrower

grounds, i.e., that Rosas’ and Hurtado’s allegations of torture were

inadmissible, given that those allegations were inextricably intertwined

with recantations.