May-June 2007

Justice beyond the border

Roberto J. Ramos

On April 28, 2005, Maria Corral was out at a nightclub with a female friend. She was 20 years old at the time and the mother of three children, all under age 5. Sometime around 12:30 a.m., she asked her friend to take her to Richard Flores’s house. Flores was the father of her three children, but they did not live together—he lived with his mother, and Maria lived with her mother. They had started dating when she was 16, and it had been a difficult relationship; Richard had already been arrested for assaulting her.

Nevertheless, that night Richard was at home celebrating his birthday, and Maria apparently felt obligated to see him. It would prove to be a fatal mistake. When Maria’s friend dropped her off at Richard’s house, he was outside waiting for her. The next morning Richard Flores’s mother found Maria’s body bound, gagged, and stuffed in Flores’s closet. She had been strangled to death, and there were signs someone had tried to sever her limbs. Flores, who had been drinking all night, was gone.

Richard Flores, a United States citizen, was indicted that May for Maria’s murder, but by then he had vanished into Ciudad Juarez, Chihuahua, Mexico, just across the border from El Paso.

The border dilemma

Nothing can frustrate a prosecutor more than an indicted criminal—especially a murder suspect—who has fled into Mexico to escape prosecution.  This problem can happen to any prosecutor anywhere in the country, not just to a prosecutor in a border city. To make matters worse, law enforcement officers often have a very good idea where the fugitive might be hiding, but given the sovereignty rights of each country, they are powerless to make an arrest. Not only do U.S. police officers lack jurisdiction in Mexico, but it is also plainly illegal for them to cross the border and attempt an arrest based on a Texas warrant. If caught by Mexican authorities, they are likely to face arrest themselves. For that matter, even Mexican police, who commonly assist their U.S. counterparts in locating fugitives in their jurisdictions, are also powerless to arrest anyone without a proper Mexican warrant.

Nonetheless, the victim, the victim’s family, law enforcement, and of course our laws demand that these fugitives be brought to justice. A do-nothing approach, in the hopes that these fugitives would one day return and get caught, was not an option for El Paso District Attorney Jaime Esparza. To increase his office’s efforts in tracking down, arresting, and prosecuting these fugitives, Mr. Esparza created the Foreign Prosecution Unit in our office to address such cases.

Extraditing a fugitive

Historically, the most common method of dealing with a fugitive who flees to Mexico is to have the fugitive extradited back to the United States. Once delivered to U.S. authorities, the accused is tried in the jurisdiction where he committed the crime. An extradition is possible based on an extradition treaty signed with Mexico on May 4, 1978. It became effective on January 25, 1980. Working with the Department of Justice’s Office of International Affairs, the local prosecutor prepares an extradition package, which consists of the indictment, capias, statutes, various affidavits, and other documents that establish the probability that the fugitive committed the crime for which the extradition is sought. While assembling the package is not terribly complicated, it is tedious and must withstand the scrutiny of officials from both countries.

As a practical matter, the first step in an extradition is to obtain a provisional arrest warrant to ensure that the fugitive is quickly arrested, assuming his location is known. The request for the warrant is submitted to the Department of Justice. Through diplomatic channels, DOJ officials ask that Mexico issue the warrant. In Mexico, the SRE (the Secretaria de Relaciones Exteriores, the Secretary of State) will receive the request and forward it to the Mexican Attorney General’s Office, or PGR (Procuraduria General de la Republica). Attorneys at the PGR will review the request and if they approve it, they will present the request to a Mexican federal judge. Once the warrant is issued and the fugitive taken into custody by Mexican federal authorities, he is not transported to the border and handed over to U.S. authorities. Instead, the fugitive is transported to Mexico City. Unlike an interstate extradition in this country, where the governor’s office might issue a governor’s warrant to retrieve a fugitive from another state, an international extradition is a matter strictly handled by the federal governments of the two countries involved—in this case, Mexico and the United States.

At that point, the extradition process begins in earnest and the clock begins to run on the treaty’s requirements. Specifically, the requesting country (the U.S.) has 60 days from the arrest date to submit a complete extradition package and get it into the hands of Mexican authorities. The decision on whether an extradition request will be granted is made by the SRE based on a federal judge’s advisory opinion.

Unfortunately, even if the extradition is granted, the matter may not be quite over. The fugitive has rights under Mexican law, one of which is the right to have an attorney, including the right to an appointed attorney, in the extradition process. So while the fugitive sits in jail in Mexico City waiting to be extradited, his lawyer is usually busy trying to block the extradition or, at the very least, delay it. Unfortunately, this dilatory practice by the defense can potentially result in delaying extradition for years. Exactly how long an extradition takes varies from case to case. Some cases have taken four years. Richard Flores, on the other hand, was extradited in nine months.

An Article 4 prosecution

There is an alternative to an extradition. If the fugitive or victim is a Mexican national and the fugitive is in Mexico, a prosecutor may request that Mexico arrest and prosecute the fugitive for a crime committed in the United States. This practice is commonly referred to as an Article 4 prosecution because it is based on Article 4 of the Mexican Federal Penal Code. This extradition alternative can be enormously resourceful in a variety of circumstances. The PGR has a unit in Mexico City dedicated exclusively to Article 4 prosecutions. The director of the unit, as well as his prosecutors (ministerios), are rigorously trained, are sharp, analytical, and completely dedicated to their jobs. Of course, the ministerios must work within their laws and judicial system. Perhaps the most prominent difference between our two judicial systems is that Mexico does not have a jury trial system. A jury does not sit and listen to witnesses. In Mexico, a case is tried by documentation. In preparing an Article 4 prosecution, therefore, the Texas prosecutor must assemble a package that includes all of the evidence in the case (i.e., witness statements, fingerprint and DNA evidence, photos, and so on), just as if the case were presented to a jury. Using what is presented to them, the Mexican prosecutors prepare the charges and the case for trial. Once the case is presented to the judge, he renders a decision and, if it’s guilty, sentences the accused.

Mexico, as most prosecutors are aware, does not have the death penalty. In fact, when U.S. prosecutors request an extradition from Mexico in a capital murder case, we must assure the Mexican government that the death penalty will not be applied to the defendant. Therefore, a request for an Article 4 prosecution in a capital murder case will result in prison time only.

Trial by documentation is precisely what can make the Article 4 prosecution so useful to Texas prosecutors. If the case is already cold to begin with, for instance, and extradition will take another two to three years, problems for an eventual trial can mount. In an Article 4 filed by our office, for example, the lone witness to a homicide died years ago. But we had his statement. We pursued an Article 4 prosecution using the witness statement, and 26 years after the murder, the defendant was caught and prosecuted in Mexico. Witnesses can also forget. Or, as in one case in our office involving multiple victims, the victims wanted justice but did not want to relive the trauma of the crime or face the accused. These problems can be avoided in an Article 4 Prosecution where live witness testimony is not necessary for a trial.

Murder is as serious a crime in Mexico as it is in our country. In Mexico, certain homicides have a range of punishment of 30 to 60 years, without the possibility of parole or credit for good time served. Our Foreign Prosecution Unit, therefore, has taken ample advantage of the Article 4 prosecution. In fact, after a trip to Mexico City to file Article 4s and become acquainted with PGR personnel, we forged a close relationship with that office. Shortly thereafter, to continue the mutual cooperation and educate prosecutors and law enforcement, our office collaborated with the PGR to host our first International Extraditions and Article 4 Prosecution Conference in El Paso. We had speakers from the PGR, Mexican judiciary, and U.S. Department of Justice. Because of the conference’s success and to continue building our relationship with Mexico, we are having another conference with newly appointed PGR personnel and new topics August 9–10 in El Paso.

It might be interesting to note that at one time the Texas Attorney General’s Office had an International Prosecution Unit that assisted prosecutors across the state with Article 4s. The unit no longer exists. Assistance and information is abundant from a variety of sources, however, beginning with the PGR. The Mexican Attorney General’s Office has two regional attaché offices in Texas, one in San Antonio and one in El Paso.  The attorneys in those offices are very helpful in answering questions, and an Article 4 can be filed at either office. Also, because our office has been very active in preparing Article 4s and extraditions and because of our involvement in the conference, we have received numerous calls from prosecutors and law enforcement officers from other states seeking help and information on Article 4 prosecutions. Recently, for example, our office filed an Article 4 on behalf of the district attorney’s office in Hereford. We welcome the call for help.

Pursuit of Richard Flores

We requested a provisional arrest warrant for Richard Flores on August 5, 2005. While the warrant worked its way through the diplomatic system, local law enforcement officers, working with the U.S. Marshals Service and Mexican authorities, searched for Richard Flores in Ciudad Juarez. Rumor had it that he had been seen on the street and in clubs.

Once the arrest warrant was issued, Mexican authorities intensified their efforts to locate and arrest him. Finally, on September 24, at around 10:30 p.m., Flores was arrested in a Juarez hotel. Mexican federal authorities alerted PGR prosecutors and then transported him to Mexico City to wait for a disposition on the request to have him extradited. The saga of Flores’s flight into Mexico finally ended March 24, 2006, when he was turned over to the U.S. Marshal Service in Mexico City; he was then flown to El Paso and handed over to local police. The mutual cooperation with the Mexican authorities in arresting and taking these fugitives off the streets paid off.

Richard Flores is scheduled to go to trial this year for the murder of Maria Corral.