While some new procedures are now required, the Mexican government has never been more willing to help capture and return fugitives hiding in their country back to the U.S. for prosecution.
When their 4-year-old son joined them in bed, Jesus Terrazas told his wife that he was going to sleep in their daughter’s room. Their daughter was 13 years old at the time. Recently, Terrazas’s wife had suspected that he was using drugs so, when he left his bed that night she thought he might be going to his daughter’s room to take drugs. She followed him into her daughter’s bedroom and turned on the light: She saw Terrazas standing next to the bed in his boxer shorts. Their daughter was lying on the bed, crying, with her legs facing her father. His wife then saw that Terrazas had an erection. Furious at what she saw, the police were immediately called and Terrazas was arrested. The investigation quickly revealed that this was not the first time Terrazas had abused his daughter. He was appointed a lawyer, and he rejected a plea offer. He was scheduled to go to trial on April 27, 2007. On that date Terrazas failed to appear in court, and family members feared that he had fled to Mexico. Thus began the hunt and pursuit of Jesus Terrazas in Mexico.
In El Paso, the international bridges to Mexico are literally blocks away from some neighborhoods, and the belief that freedom is just beyond those borders is too great a temptation for many criminals. Recently the suspect in a triple homicide, who had fled from El Paso to Mexico after the killings, walked across the bridge from Ciudad Juarez, Mexico, and turned himself in to startled U.S. Custom officers less than a week after the crime.
This conscientious act, however, is extremely rare. More commonly fugitives have to be rigorously pursued deep into Mexico. To track down those fugitives, the El Paso County District Attorney, Jaime Esparza, created the Foreign Prosecution Unit. In the eight years of its existence, the unit has established close working ties with the Department of Justice (DOJ), Office of International Affairs (OIA), U.S. Marshals Service, and Federal Bureau of Investigation (FBI); it has also established a solid working relationship with Mexican prosecutors in the various PGR (the Mexican equivalent of the Attorney General) offices throughout the country and in Mexico City, and with the Mexican Consulate’s Office in El Paso. The good news is that any DA’s office can also look to any of these agencies for help in locating, arresting, and extraditing fugitives who are hiding in Mexico.
Extradition treaty with Mexico
In May 1978, the United States signed an extradition treaty with Mexico, which went into effect on January 25, 1980.1 The treaty’s appendix lists the extraditable offenses; in addition, Article 2 of the treaty states that willful crimes that fall within any of the clauses of the crimes listed in the appendix are also extraditable. An intentional crime punishable by at least one year in jail may also be extraditable.
Article 3 of the treaty sets out the evidence required to successfully obtain an extradition. This article states that the extradition shall be granted only if the evidence is sufficient, according to the laws of the requested party, for committing the defendant to trial. It has been my experience, however, that the case must be fairly strong. Even though many weak cases have been successfully tried, for extradition purposes, a weak case may not pass the scrutiny of the Department of Justice. The treaty also sets out the required documents, and those can be found in Article 10. Article 10 also sets out extradition procedures.
In short, the treaty is composed of 23 Articles and an Appendix and should be read carefully before an extradition is pursued. Since the treaty’s inception, Mexico has been an excellent partner in the pursuit of fugitives hiding within its borders.
First things first
To pursue an extradition from Mexico, one must first have an address for the fugitive in Mexico. This may seem like an odd requirement, but the U.S. Marshals Service or the FBI can assist in this matter. Both agencies have offices in Mexico City, and both are well-connected and have ample sources in Mexico that can yield an address for the fugitive. Also, the Procuraduria General de la Republica of Mexico (abbreviated PGR; this is the attorney general’s office) can help. The PGR has five offices in the U.S., any one of which can be contacted for assistance. People there are always willing to help.
Once an address for the fugitive is obtained, the first step is to request a Provisional Arrest Warrant (PAW). This is a warrant issued by the Mexican authorities pursuant to the treaty. A state warrant from Texas or any other state in the U.S. is not valid in Mexico.
Provisional arrest warrant
To request a PAW, the Department of Justice requires a certified copy of a capias, certified copy of the indictment, and draft of the extradition package. This last requirement, the draft of the extradition package, previously was not required in seeking a provisional arrest warrant. But these days, DOJ likes to have a draft of the extradition package to expedite the process.
DOJ will review all of the affidavits and documents submitted in the package; therefore, the draft must contain all of the necessary affidavits (unsigned—more on why later), and all the other required documents and evidence. DOJ will review the package carefully, and once it is satisfied that there is enough evidence to move forward, officials there will request the PAW.
Armed with a PAW, the Mexican Federal Police will arrest the fugitive in Mexico. Once this occurs, the clock begins to run on the requirement that the formal extradition package be delivered to the Mexican authorities within 60 days of the fugitive’s arrest, or the fugitive will be released.
Every extradition package is likely to look different. Much will depend on the type of case, the facts of the case, the witnesses involved, and other details. Nevertheless, every extradition package will contain some basic documents and generally will be assembled as follows:
1) Prosecutor’s affidavit (an explanation of the laws and statement of the case)
2) Exhibit A: Certified Copy of the Indictment
3) Exhibit B: Certified Copy of the Arrest Warrant
4) Exhibit C: Relevant Statutes
5) Exhibit D: Affidavit of Case Agent (a detailed accounting of the investigation)
• Attachment 1: Photo of Defendant
• Attachment 2: Fingerprints of Defendant
• Attachment 3: Medical Records or Autopsy Reports
6) Exhibit E: Declaration of Witnesses
• Attachment 1: Witness Statement
• Attachment 2: Photo of Defendant
When I put my first extradition package together in 2005, I gathered the witness statements and police supplements from the original police file, and we had those documents certified at the police department. Along with the other basic documents listed above, that was essentially our extradition package. That was the extradition of Richard Flores, a man who murdered his common-law wife. Flores’s extradition moved quickly and seamlessly through the diplomatic channels of both the United States and Mexico. In fact, Flores was back within six months after the extradition was requested.
Things have changed. Today, DOJ is requiring “new” witness declarations (affidavits). The witness statements taken by police that may already exist in a file may not be enough for purposes of an extradition from Mexico. As a result, investigators must now contact witnesses during the preparation of the extradition package and have them ready to come in to sign a new affidavit. Also, at least one of the declarations must be from a witness who can identify the defendant through an attached photo as the perpetrator of the crime. Once the folks at DOJ have a copy of the draft, they will thoroughly review all of the affidavits. They may make suggestions on the wording of one of the affidavits or have questions about the case that must be addressed in the overall package. The affidavits should not be signed until after everything is approved by DOJ. A prosecutor’s affidavit and the case agent affidavit are signed in front of a district judge. Witness declarations are generally signed in front of a notary. According to the DOJ timeline, the agency prefers to have all properly executed extradition documents within 42 days of the arrest date of the fugitive. Currently DOJ is requiring two original packages and six copies.
Translating the package
The entire extradition package must be translated into Spanish for the prosecutors, judges, authorities, and defense attorneys. Be assured that each Mexican official will carefully scrutinize every document in the package; therefore, the importance of the quality of the translation cannot be over-emphasized—the extradition package must be handed over to a professional translator. (DOJ can have the package translated but that is likely to cost twice as much as shopping around for your own translator.)
The extradition process
The decision on whether to extradite a fugitive back to the United States is made by the Secreteria de Relaciones Exteriores (SRE). The SRE will seek an advisory opinion from a federal judge on whether the extradition should be granted. If the judge finds some reason why the extradition should be denied, the SRE can address those concerns and still grant the extradition. On the other hand, if the SRE grants the extradition, the defendant can challenge that decision by filing an amparo.
The amparo operates much like a habeas corpus proceeding in our laws. In Mexico, an amparo can be used to challenge practically every aspect of the legal proceedings against an individual. For example, an amparo can challenge the propriety of an arrest warrant, search warrant, or even the charges against a person. Once a case reaches the trial stage, an amparo can challenge a judge’s decisions during the course of the trial. If an amparo is filed during a trial, the proceedings are stayed until the issues raised in the amparo are resolved. Those issues will be addressed and resolved by an amparo court, that is, a court separate and apart from the court presiding over the case in chief.
Likewise, if the decision to grant an extradition is challenged by an amparo, the extradition is stayed until the amparo is resolved. If the amparo court finds merit in the issues raised by the amparo, the SRE can cure the issues or possibly appeal the decision to a higher court. A fugitive will not be extradited if there are any unresolved amparos pending in court. In fact, one of the last things that INTERPOL does before handing the fugitive over to U.S. authorities is to make sure no amparos are pending.
The arrest and extradition of Terrazas
A provisional warrant was issued for Jesus Terrazas on February 26, 2009. Unlike other cases we have worked on, his arrest was rather uneventful. With the assistance of the U.S. Marshals Service, Terrazes was located in Choahuila, Mexico. He was arrested on November 12, 2010, and he was extradited on April 8, 2011. Terrazas was tried in June 2012. The prosecutors, Lisa Clausen and Holly Rodriguez, did an excellent job. He was found guilty and sentenced to 60 years in prison. The U.S. Marshals Service and FBI have always helped to show flight in an extradition case that goes to trial; one of the case agents from the U.S. Marshals Service testified at the trial.
A final word on extraditions
It is important to contact DOJ to discuss the latest instructions and requirements on extraditions. For example, on drug cases, DOJ has begun to require at least one civilian witness, which can be difficult if a drug bust did not involve a civilian. Also, in the last two post-conviction extradition cases we did (extradition to serve out a sentence), rather than request the PAW after approving the draft of the extradition package, DOJ asked that we submit the formal package, and then DOJ requested the PAW.
Alternatives to an extradition
A deportation is the fastest way to get a fugitive back from Mexico. The fugitive cannot be a Mexican citizen, however, because Mexico will not deport one of its citizens. Also, when a deportation occurs, there are no political strings attached. For example, to get a capital murder suspect extradited, assurances have to be given to Mexico that the death penalty will not be applied to the case. This is not necessary in a deportation. Another benefit might be getting around the specialty rule, which states that a fugitive can be tried only for the offense for which he was extradited. There are exceptions, but basically the rule is not a concern in a deportation.
Once the Mexican authorities decide (more often than not, they are convinced through on-the-fly negotiations with U.S. agents working the case) to deport someone, it can take between two and six hours before the paperwork is complete. Once that occurs, U.S. law enforcement officers want no further delays in getting their hands on the suspect. This is where our city’s proximity to the border can be an asset—no flight arrangements have to be made. In two recent murder cases the deportation out of Ciudad Juarez culminated with Mexican authorities taking the suspects to one of the international bridges in downtown El Paso and literally turning him loose on their side of the bridge while U.S. law enforcement officers waited anxiously a few yards away on the U.S. side.
Article 4 prosecutions
Under Article 4 of the Federal Mexican Penal Code, Mexico will arrest and prosecute a fugitive for crimes committed outside its border if the perpetrator or victim is a Mexican citizen and if the subject is found in Mexico. This can be a very useful alternative to an extradition when the witnesses are all in Mexico, where perhaps there is a Mexican statute that might improve the probability of conviction, or, as I have seen, when the witnesses no longer want to go through the ordeal of a trial.
We share a lengthy border with Mexico, a border that is still perceived by criminals as the gateway to freedom. Because of the hard work of many federal and local agencies on both sides of the border, that notion is now an illusion.
Whether by extradition, deportation, or an Article 4 p#rosecution, justice demands that fugitives be held accountable for their crimes even if the trail to their capture leads into Mexico. The tools and the means for their arrest and extradition are already in place and should not be overlooked.
1 The treaty is available online at http://sitemaker.umich.edu/drwcasebook/files/u.s.__mexico_extradition_tr....