F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E L U I S M U

N O Z S A N T O S , Petitioner-Appellant
,

v

.

L I N D A R. T H O M

A S , W arden, Respondent-Appellee

. No. 12-56506

D.C. No. 2:11-cv-06330-MMM

OPI NI ON

A ppeal from the United States District Court for the Central District of California Marg a ret M. Morrow, District J udg e, Presiding

Arg ued and Submitted N ovember 20, 2014—Pasadena, California

F iled March 9, 2015

B efore: Mary M. Schroeder and J acqueline H. Ng uy en, Circuit J udg es, and J ack Z ouhary , District J udg e. *

Opinion by J udg e Ng uy en

* T h e Ho n o rab le J ack Z o u h ary , District J u d g e f o r th e U.S. District Co u rt f o r th e No rth ern District o f Oh io , sittin g b y

d esig n atio n

.M U N O Z S A N T O S V

. T H O M

A S 2

SUMMARY * *

Habeas Corpus/Extradition

The pan el a f

firmed the d istrict court’s denial of h abeas relief from a mag istrate judg e’s order certify ing J ose Munoz Santos’ ex tradition to Mex ico on kidnapping charg es.

The panel held that t h e mag istrate judg e, serving as the

ex tradition court, properly ex cluded from its p robable cause determination evidence that two witnesses, who had provided key incu l p a t o ry statements, later recanted and stated their
statements were obtained by torture. Th e p a nel ex p lained th at in a case like this one, where torture alleg ations a re inex tricably intertwined with the witnesses’ recantations, the evidence w as properly ex cluded because i ts consideration would have required a mini-trial on whether the witnesses’ initial statements were procured by torture.

The panel concluded that the district c o urt properly denied the h abeas petition because the ex tradition court’s probable cause d etermination was supported by competent evidence.

COUNSEL

Matthew B

. L arsen ( arg ued), Deputy F e deral P u b lic De fender, and Sean K. Kennedy
, F ederal Public Defender, L os Ang eles, California, for Petitioner-Appellant.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M U N O Z S A N T O S V

. T H O M

A S 3

Aron K etchel (arg

ued), a nd Robert E. Dug dale, Chief, Criminal D ivision, As s istant United States Attorney s, a nd André B irotte J r., United States Attorney
, L os Ang eles, California, for Respondent-Appellee.

OP INION

NGUYEN, Circuit J u dg e:

J ose Munoz Santos (“Munoz ” ) appeals the d istrict court’s denial o f habe a s relief from a mag istrate judg e’s order certify i ng h is ex tradition to Mex ico o n kidnapping charg es. He arg ues that the mag istrate j udg e erroneously ex cluded evidence that two witnesses, who had prov ided key inculpato ry statements, later recanted and stated that their statements were obtained by torture. W e find no error. The evidence of torture was, as Munoz concedes, i n e x tricably intertwined w ith the witnesses’ recantations. A s a r esult,

c o n s i d ering the witnesses’ claims o f torture would hav e required the mag istrate judg e, serving as the ex tradition court, to weig h c onflicting evidence and make c r edibility determinations. Under these circumst ances, the e x tradition court properly

ex cluded this evidence. W e affirm.

BACK G ROUND

A. Evidence Supporting the Extradition Certif ication

I n support of its ex tra d i t i o n request, the g overnment o f Mex ico provided statements from five witnesses implicating Munoz in the alleg e d k idnapping for ransom of Dig nora Hermosillo Garcia (“Hermosillo”) and her two children. According to Hermosillo, she and her two y oung d aug htersM U N O Z S A N T O S V

. T H O M

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were a bducted from their home in the evening of Aug ust 18, 2 0 0 5, b y a masked man holding a g un. She later identifi e d F austo L ibrado Rosa s A l faro (“Rosas”) as the masked
gunman. Rosas forced Hermosillo and her children i n t o Hermosillo’s jeep and drove them away at hig h speed. Rosas tug g e d o n his mask as he d r o v e a nd Hermosillo saw that he had a larg e mark, like a mole or a scar, on his n o s e. Rosas asked h er for information about her husband’s work and daily routine, and later, for her b a n k c ar d PI N nu mber. At o ne point, Rosas stopped the v ehicle to tape his captives’ mouths, hands, and f

eet. He eventually took o n e child ou t o f t he c ar and abandoned her, and later did the same to the second child. After more driving
, he left Hermosillo tied up by a tree. The
y oung er o f Hermos i l l o ’ s daug hters was later found dead. H e r m o s i l l o ’ s h u s b a n d
, R o b e r t o C a s t e l l a n o s M e z a (“Castellanos”), confirmed that his wife and d a ug hters went missing in the evening of Aug ust 18, 2005.

Rosas g ave a statement, d ated March 27, 2006, a dmitting
t o being the masked g u nman w ho abducted Hermosillo a nd her daug hters. He identified petitioner Munoz as a chief orchestrato r of the kidnapping
, a n d attested to the participation of J esus Servando Hurtado Osuna (“Hurtado”). Hurtado also g ave a statement, d ated March 14, 2006, in which he admitted to his role as the lookout on the day of the kidnapping

. Hurtado corroborate d R osas’ identification o f Munoz as an orchestrator of the scheme.

F inally
, the Mex ican g overnment provided a statement o f B enig no Andrade Hernandez (“Andrade”), assertin g that Rosas and Munoz approac h e d h i m in early Aug ust 2 005 to help them p ull a “job” that involved asking “B eto” for 2

m i llion pesos. The parties do not d ispute that “B eto” is aM U N O Z S A N T O S V

. T H O M

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common nickname f

o r “Roberto,” the first name o f Hermosillo’s husband.

B a sed on these five statements—o f Hermosillo, Castellanos, Rosas, Hurtado, and Andrade—the e x tradition
court found that there wa s probable c ause to believe that Munoz w as g uilty o f the a lleg ed kidnapping
, and according ly certified ex tradition. In re Extradition of Santos
, 795 F

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

B. Excluded Statem ents

I n certify ing ex tradition, the e x tradition court ex cluded from its c onsideration t h e following six statements—four from Hurtado, and two from Rosas. Id. at 987–90.

On March 22, 2 006, Hurtado stated th a t he “do[ es] not ratify ” his p r ior statement implicating Munoz because it was sig ned “upon torture,” and is “false.” The r em a i n d er o f the
statement details the torture and other abuse that he suffered. I n a statement dated May 25, 2 006, Hu r t a d o s t ated that his prior statement of O ctober 12, 2005, was mad e “ under torture.” 1 Hurtado also denied any involvement in the alleg ed kidnapping

. Nex t, on November 21, 2006, Hurtado asserted that on A ug ust 18, 2005 (the day of the alleg ed kidnapping ),

a tax i driver took him to a location where h e had been performing c arpent r y w o r k

. He stated that h e was tortured,

1 T h e ex trad itio n co u rt did n o t ad d ress Hu rtad o ’ s Octo b er 1 2
, 2 0 0 5 statem en t, w

h ich co n tain s a d ram atically d if f eren t d escrip tio n of th e

ev en ts o n t

h e d ay o f th e alleg ed k id n ap p in g , b u t also m ak es n o alleg atio n s

o f to rtu re. Mu

n oz d o es n o t co n t en d t

h at th e ex trad itio n co u rt’ s silen ce as to th is statem en t co n st i t ut e s erro r. We t h eref ore ex p ress n o v i ew o n th e sig n if ican ce, o r lack

th ereo f , o f Hu rtad o ’ s Octo b er 1 2 , 2 0 0 5 statem en t.M U N O Z S A N T O S V

. T H O M

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and presented w ith a written statement, which he sig ned. He

was told that he would be killed if he c h a ng ed his statement. Fi n ally
, on J u ne 10, 2009, Hurtado stated that he does n o t know Munoz or Rosas. He also renewed his claims t h at he was subjected to torture and beating s.
Similarly
, Rosas stated on May 25, 2 0 06, that he was “forced to sig n” his p rior statement implicating M u n o z a nd others in the a lleg ed kidnapping
, under “phy sical and oral”
pressure, i n c luding threats to the wellbeing of his family

. Rosas added that he w ished t o “ retract” his prior statement. O n J u n e 20, 2 006, Rosas elaborated on the threats ma d e ag ainst his family
, and “den[ ied ] the parts” of his prior statement that implicated him in the kidnapping

.

The ex tradition c ourt ex cluded these statements from its probable cause determination. Rely i n g o n Barapind v

. Enomoto
, 400 F .3d 744, 749 (9th Cir. 2 0 0 5) (en b anc) (per curiam), the ex tradition court stated:

re c a n t a t i o n e v i d e n c e i s c o n t r a d i c tory evidence, and . .

. the complex
, nuanced factintensive inquiry i n to the comparative reliability of inculp atory statements a nd recantations, including the circumstances under which the statements w ere obtained, is appropriately reserved for determin a tion b y

co u rts of the requesting state, which have access to the full panoply of evidence.

In re E xtradition of Santos
, 795 F

. Supp. 2d at 989 (citing Barapind , 400 F .3d at 749).M U N O Z S A N T O S V

. T H O M

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Munoz then petitioned for a writ of habeas corpus in the district c ourt. He arg u ed that the ex tradition court’s probable

cause determination was not supported by compet e nt evidence because it failed to consider evidence of torture. T he district court denied relief, concluding that Rosas’ a n d H u r t a d o ’ s a s s er t i o n s o f t o r t u r e w e r e “ inex t r i c ab l y intertwined” with their recantations and therefore were properly ex cluded. This appeal followed.

JURISDICTION AND STANDARD OF REVIEW

The ex tradition court had jurisd i ction p u rsuant 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 a n ex t r adition order is limited to w hether

. . . there is a n y competent evidence supporting the p robabl e c a use determination of the [ ex tradition court] .” Vo v. Benov , 447 F .3d 1235, 1 240 (9th Cir. 2006) (internal quotation marks omitted). W e review de

novo the district court’s decision deny i n g a habeas petition. Prasoprat v. Benov , 421 F .3d 1009, 1013 (9th Cir. 2005).

D ISCUSSION

A. Lim ited Nature of

Extradition P roceedings

Ex tradition from the U nited States beg ins when a foreig n nation lodg e s a request directly w ith t h e United States Department of State. Vo
, 447 F .3d at 1237. After t h e State Department evaluates whether the request f alls w it h i n the
scope of the relevant e x tradition treaty , a United States A t t o rn e y seeks an a

rrest warrant in f

ederal district court fo r the person soug ht. Blaxland v. Commonwealth Dir. of P ub.M U N O Z S A N T O S V

. T H O M

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Prosecutions
, 323 F .3d 1198, 1207 (9th Ci r. 2 0 0 3 ). I f a judicial o fficer—usually a mag istrate judg e—finds that there is probable cause to “ sustain the charg e under the provisions

o f t he proper treaty or convention,” 18 U.S.C. § 3184, t h e off i c er certifies to the Secretary of State that the person is

ex traditable, B laxland , 323 F .3d at 1208.

Ex tradition proceeding s are limited affairs, akin to “preliminary ex aminations

. . . for the purpose o f d etermining whether a case is made out which w i ll justify the holding o f the accused.” Charlton v. Kelly
, 2 29 U.S. 447, 4 6 0 ( 1 913) (quoting Benson v. M

cMahon
, 127 U.S. 457, 463 (1888)). A person facing ex tradition may present evidence that “ex plains

a way or completely obliterates probable cause

. . . where a s evidence that merely controverts the ex iste n ce of probable
cause, or r aises a defense, is not admissible.” Ma i n e r o v

. Gregg
, 1 64 F .3d 1199, 1207 n.7 (9th Cir. 1999), superseded by statute on other grounds
, Pub. L

. No. 105-277, § 2242. This r ule rests on the principle that a f o r e i gn g overnment seeking ex tradition should not b e forced “ t o produce all its evidence [ before the ex tradition court i n the United States]
, both direct and rebutting
, in or d e r to meet the defense thus
g at hered from every quarter,” thereby converting the

ex tradition p roceeding “into a full trial o n t h e merits.” Collins v. Loisel
, 259 U .S. 309, 3 1 6 ( 1 9 22) (quoting In re W adge
, 15 F

. 864, 866 (S.D.N.Y. 1883)). Thus, althoug h “[ a] dmi s s i on of evidence proffered by the fug itive at an

ex tradition proceeding is left to the sound discreti o n o f the court,” the e x ercise of that discretion is “g uided of course b y the principle th a t evidence of facts contradicting the demanding country ’s proof or establishing a def e n se may properly be ex cluded.” Hooker v. Klein
, 573 F .2d 1360, 1369 (9th Cir. 1978).M U N O Z S A N T O S V

. T H O M

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B. “Explanatory” versus “Contradictory” Evidence

Courts have strug g led to ex plain the distinction between admissible “ex planatory ” o r “obliterating ” evidence on t h e

one hand, and inadmissible “ c ontradictory ” evidence o n t h e other. See, e.g.
, In re Extradition of Strunk
, 293 F

. Supp. 2d 1117, 1122 ( E.D. Cal. 2003) (describi n g t h e distinction between these ty

pes o f evidence as “metaph y s i c a l”). W e need not wade into that issue in g reat depth, h owever, as our decision in Barapind larg ely g u ides our analy sis in this c ase.

I n Barapind
, a dis trict judg e, sitting as an e x tradition
court pursuant to 18 U.S.C. § 3184, c ertified Ku l vir Sing h B arapind’s ex tradition to I ndia. 400 F .3d a t 746–47. The
g overnment of I ndia soug ht B arapind’s ex tradition due to his involvement in several incidents as a member of the All I n dia Sikh Student F ederation, a g roup “dedicated to e s t ab l ishing

an independent sovereig n Sikh nation.” Id. at 7 47. I n one o f the incidents, B arapind alleg e dly “drove a scooter while a g unman riding with hi m k i lled one man and wounded another.” I

d. at 7 49. I ndia relied heavily on the a ffidavit o f Makhan Ram, a witness who identified B arapind as the driver of the scooter. In re Extr a d i t i o n o f Singh
, 170 F

. Supp. 2d 982, 1004–05, 1024 (E.D. Cal. 2001).

I n the ex tra d i t i o n c o u

r t, B arapind offered another affidavit from Ram, in which Ram “d e n i e [ d] ever having made a statement i m p licating B arapind or having seen him a t the

scene of the attack.” Id. at 1 024. The ex tradition court noted Ram’s “potential bias ag ainst I n dia” based on a claim that he previously h ad been falsely accused of a crime by the police. I d

. T he court also pointed to a lack of informati o n concerning the circumstances under which the subsequent affidavit w as taken, and about Ram’s “backg round o rM U N O Z S A N T O S V

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political views to enable evaluation of his motives a nd possible bias.” Id. The ex tradition court then certified Ram’s

ex tradition, concluding that Ram’s “recantation is conflicting and inconsistent with his earlier a lleg ed statements,” a nd that, “[ u] nder all the circums tances, the c redibility of Makhan Ram’s recantation cannot be determined without a trial.” Id.

W e affirmed the c ertific a t i on of ex tradition a s to the charg es relating to the above incident. I n an en banc ruling
, we held that an ex tradition court may p r o p e rly ex clude recantations or other conflicting statements if c o n sideration of such e vidence would require the court to weig h conflicting evidence or m a k e c redibility determinations. Barapind
, 400 F .3d at 749–50; see a l s o Quinn v. Robinson
, 783 F .2d 776, 815 (9th Cir. 1986) (noting that a n ex t r a d i tion court “does not weig h conflicting evidence and make f actual determinations”). W e concluded:

The ex tradition court was supported b y comp et e nt evidence in finding that B arapind did n ot obliterate I ndia’s showing of probable
cause, as [ Ram’s] more recent af fidavit

c o n s t i t u t e d c o n f

l i c t i n g e v i d e n c e , t h e cred ibility of which c ould not be assessed without a trial. B e c ause ex tradition courts do
not weig h conflicting evidence i n making their probable caus e determinations, w e find

no basis for overturni n g the ex tradition court’s decision t h at probable cause o f B a rapind’s g uilt ex isted . . . .M U N O Z S A N T O S V

. T H O M

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B arapind
, 400 F .3d at 749–50 (citation, internal quotatio n marks, and brackets omitted). 2

C. The Recantation Evidence w as P roperly Excluded

Here, like Ram’s second affidavit in Barap i n d
, the subsequent statements of Rosas and Hurtado are recantations; they dir e c t l y contradict o r otherwise challeng e these witnesses’ initial inculp at ory statements. 3 Rosas stated that he wished to “retract” his p rior statement, and that he “den[ ied] ” the parts of the statement that impl icated him. Hurtado asserted t h a t he “ d o[ es] not ratify ” his initial statement, had “nothing to do” with the alleg e d kidnapping
, was p e rforming ca r

p e ntry work on the day of the alleg ed kidnapping
, and did not know Munoz or Rosas. Determining whether to credit these subsequent statements or Rosas’ a nd Hurtado’s initial inculpatory statements would have r equired the ex tradition court to weig h conflicting evidence and make

c r e d i b ility finding s. W e therefore conclude that the

2 Ba ra p in d ’ s an aly sis o f recan tatio n ev id en ce is larg ely co n sisten t w i th th e ap p ro ach o f ot h e r c i r cu it co u rts th at h av e ad d ressed t h is issu e. S

ee Ho xh a v. Levi
, 46 5 F.3 d 5 5 4
, 5 6 1 –6 2 (3 d Cir. 2 0 0 6 ) (h o ld in g th at th e

ex trad itio n co u rt d id n o t ab u se its d iscretio n in ex clu d in g a r e c a n tatio n g iv en th at th e o rig in al s tatem en t w as in d ep en d en tly co rro b o rated
, an d th e

recan tatio n

“ p ro v id ed an altern ativ e an d co n trad icto ry n arrativ e th at can p ro p erly b e p resen ted at trial”); Ea in v. W ilkes
, 6 41 F.2 d 5 0 4
, 5 1 1

– 1 2 (7 th Cir. 1 98 1 ) (h o ld in g th at th e ex t rad itio n co u rt p ro p erly ex clu d ed statem en ts

o f f ered b y a p erso n ch allen g in g ex trad itio n b ecau se th e statem en ts “ ten d
to co n trad i ct o r c h allen g e th e cred ib i lity o f th e f acts im p licatin g p e t i t i o n er,” an d th at “ su ch a co n test sh ou ld be reso lv ed at trial” in th e

co u n try seek i n g ex trad itio n ).

3 A recan tatio n is a “ retractio n ” o r a “ d i sav o w al.” Reca n ta tio n , Ox f o rd En g lish Dictio n ary , w

w w .o ed .co m

/v i ew /En try /1 5 9 3 45 ? red irected Fro m =
recan tatio n # eid (last v isited Feb . 2 , 2 0 1 5 ).M U N O Z S A N T O S V

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ex tradition c ourt pro perly ex cluded these subsequent
statements b ecause they constitute inadmissible recantations. See B arapind
, 400 F .3d at 7 49–50. 4 Since Mun o z ’ s o nly challeng e to the ex tradition cou r t ’ s probable cause determination is based on the e x clusion of these recantations,

we likewise conclude that the probable cause determi n a t i on

was supported by competent evidence. Cf. Quinn
, 783 F .2d
at 815 (“[ O ] n review w e can determine only whether, because of an a bsence of competent evidence, the mag istrate’s [ probable cause] determination is wrong as a matter of law.”).

Munoz arg ues that two o f the chall e n ged statements— Rosas’ statement of May

25, 2006, and Hurtado’s statement of March 22, 2006—offer no alternate factual account of the kidnapping to c ompete with the version of events relied on b y Mex ico in support of its ex tradition request. Acco r d i n g to Munoz
, the recanting statements should not h ave been precluded as “contradictory ” evidence be cause in these statements, Rosas and Hurtado simply rejec t t heir prior inculpatory statements on the g round that they were procured by torture. Munoz ’s arg ument is foreclosed by Barap i n d because there, Ram’s recanta t i o n a lso did not offer a competing factual narrative. S e e 400 F .3d at 749. Rather, Ram stated that he n ever identified B arapind and was forced by the police to sig n a blank sheet o f p a p e r. I d

. W e nonetheless found no error in the ex tradition court’s conclusion that it could not resolve the confl i c t b etween

4 T h is co n clu sio n is b o lste r ed b y th e f act th at, lik e in Ba ra

p in d
, Ro sas

an d Hu rtad o h ad

an in cen tiv e to f

alsely recan t , as th ey p resu m ab ly f aced crim in al l iab ility stem

m in g f ro m th eir o w n p articip atio n in t h e alleg ed k i d n a p p in g

. Cf. In re Extra d itio n o f S in g h
, 1 7 0 F. Su

p p

. 2 d at 1 0 2 4 (n o tin g th e recan tin g w itn ess ’s r e aso n s f or b ias ag ain st t

h e In d ian
g o v ern m en t).M U N O Z S A N T O S V

. T H O M

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Ram’s affidavits without a trial. Id

. a t 7 4 9 –50. The same analy sis applies here.

Nex t, Munoz contends that evidence procured by torture is n ecessarily not “competent evidence” that can supp o r t a determination of probable cause. I t is bey ond dispute that the

use of evidence obta i n e d by torture is “unspeakably inhumane,” Boumediene v. Bush
, 4 76 F

. 3d 9 8 1
, 1 0 0 6 (D.C. Cir. 2007) (Rog ers, J
., diss e n ting ), judgment vacated
, Al Odah v. United S

tates , 282 F

. A p p’x 844 (D.C. Cir. 2008), and evidence obtained by torture is inadmissible in domestic crimina l p r o ceeding s, cf. Crowe v. County of San Diego
, 608 F .3d 406, 433 (9th Cir. 2 010). Here, however, we ag r ee with the district court that the alleg ations of torture a r e “inex tricably inter t wi ned” with Rosas’ and Hurtado’s recantations. Each recantation includes both a disavowal o f the w itness’s prior inculpatory s t at e m ents, as w ell a s alleg ations that the statements were p r ocured by torture. I ndeed, Munoz concedes that the d istric t court correctly characteriz ed the evidence as “inex tricably intertwined,” a nd that Rosas and Hurtado are essentially say ing
, “I was tortured

so the thing s I said the first time are not cred i b l e

. ” Th u s, in order to evaluate Rosas’ a

nd Hurtado’s torture alleg ations, the

ex tradition court would necessarily h ave had to evaluate the veracity of the r e c a ntations and weig h them ag ainst the conf l i c t i n g inculpatory statements. D oing so would have

e x c eeded the limited a

uthority of the ex tradition court. S e e Barapind , 400 F .3d at 749–50; Quinn
, 783 F .2d at 815.

W e recog n iz e that several ex t r a d i tion courts in this Circuit have, at times, elected not to rely on ev i d e nce alleg edly obtained by torture, or have considered alleg ations of torture but found them to be unreliable. See Cor n ej o

Barreto v. S

eifert
, 218 F

. 3d 1004, 1008 (9th Cir. 2000),M U N O Z S A N T O S V

. T H O M

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overruled o n other grounds
, Trinidad y Ga r c ia v. Thomas
, 683 F .3d 952 ( 9 th Cir. 2 012); Mainero
, 164 F .3d at 1206 (noting that the ex tradition c o urt considered alleg ations o f torture, but u ltimately fo u n d that there was “no reliable evidence of torture or dure s s”). I ndeed, Munoz cites a different passag e in Bar a p i n d
, where we endorsed the

ex tradition court’s “incident-by incident” consideration o f whether c ertain evidence w a s fabricated or procured b y to r t u r e

. See 4 00 F .3d a t 748. Some courts in other c ircuits have taken similar approaches. E.g.
, Atuar v. United States
, 156 F

. A pp’x 555, 563 ( 4th Cir. 2005) ( noting that the

ex tradition court “correctly considered” evidence that a prior inculpatory statement w as o btained by torture, but found that evidence to be less r eliable than t h e initial inculpatory statement); Matter of Extradition of Contreras
, 800 F

. Supp. 1462, 1 469 ( S.D. Tex

. 1992) (finding recan t a tions alleg ing
torture to be more c r edible than initial i n c ulpatory statements).

However, none o f these cases stands for the proposition that an ex tradition court must accept as true alleg ations o f
torture whenever they are raised, nor do they endorse the weig hing of evidence by an e x t r a d i tion court. Rather, these

cases reflec t t h e hig hly fact-intensive nature of these proceeding s, and the well

- e s tablished principle that “[ a] d m i ssion of evidence proffered by the fug itive at an

e x t r a dition p roceeding is left to the sound discretion of t h e [ ex tradition] c o urt.” Hooker
, 573 F .2d at 1369. Under the appropriate c ircumstances, an e x tradition court may ex ercise its discretion to consider alleg ations of torture. B ut in a case like this one, where torture alleg ations are inex tricably intertwi n e d w i t

h t h e w i t nesses’ recantations, the evidence was properly ex cluded because its c o nsideration would require a

m ini-trial on whether the initial statements of Rosas a n dM U N O Z S A N T O S V

. T H O M

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Hurtado were procured by torture. See Barapind
, 400 F .3d at 749–50. 5

CONCLUSION

The ex tradition court did not abuse its dis c r e t i on in

ex c luding Rosas’ and Hurtado’s statements alleg ing t o rture

as contradictory evidence. I n turn, the district court properly denied Munoz ’s habeas p etition b ecause the e x tradition court’s probable cause det e rm ination was supported b y competent evidence.

AF F IRMED.

5 T h e g o v ern m en t asserts th at an y ev id en ce p ro f

f ered o r relied o n b y a p erso n f acin g ex trad i tio n is per se in ad m issib le i f i t r eq u i res th e

ex trad itio n co u rt to reso lv e a fa c tu al d isp u te as to an y m atter. W e n eed

n o t ad d ress th is co n t en tio n b ecau se w e reso lv e th e case on m u ch n arro w er g ro u n d s, i.e., t

h at Ro s as’ an d H u rtad o ’ s alleg atio n s o f to rtu re w ere in ad m issib le, g iv en th at th o se alleg atio n s w ere in ex tricab ly in t ertw in ed

w ith recan tatio n s.