A federal appeals court has rejected claims by two men that they were illegally extradited from Mexico to Arizona where they were convicted in connection with the 2010 murder of a Border Patrol agent.
Judge Sandra Ikuta of the 9th Circuit Court of Appeals acknowledged that the treaty between the United States and Mexico allows extradition only according to specific terms. And, in general, it requires that the crime for which the United States seeks someone also be a crime in Mexico.
But Ikuta, a President George W. Bush appointtee, writing for the unanimous three-judge panel, said the crimes charged against Ivan Soto-Barraza and Jesus Lionel Sanchez-Meza are “substantially analogous” to similar crimes under Mexican law.
Anyway, she said, Mexico agreed to extradite the two men on all the charges listed in the indictment. And that, Ikuta said, shows that the treaty’s principles have been satisfied.
The case involves Operation Huckleberry, a 2010 effort by the Border Patrol Tactical Unit to apprehend gangs that preyed on drug smugglers in what is known as the Arizona Mesquite Seep, an area of rough terrain west of I-19 about 11 miles north of the international border.
In December of that year, Brian Terry was among six agents deployed to the area for a 48-hour operation. Terry was hit by a bullet and later died.
FBI agents at the crime scene linked rifles, backpacks and their contents to the two men along with four others who eventually were indicated on murder charges, conspiracy to interfere with commerce by robbery, assault on four Border Patrol officers, and carrying and discharging a firearm in furtherance of a crime of violence.
About a year and a half later, Mexican authorities arrested Sanchez-Meza where he was interviewed by FBI agents. He eventually confessed.
A year later Soto-Barraza confessed after being interviewed. Both eventually were extradited to the United States where they stood trial and were convicted, with a life sentence imposed on both on the murder charge and additional time for the other charges.
On appeal, attorneys for the pair cited the “dual criminality” provision of the treaty. Ikuta said it says an accused person can be extradited “only if the conducted complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations.”
There also is a list of categories of offenses.
But the judge also said there’s another provision which says extradition shall also be granted for “willful acts,” which, even though not listed, are punishable in accordance with federal laws in both countries by prison terms of at least one year.
In seeking to void the extradition, defense attorneys focused on the “felony murder” charge. That, in essence, says that someone can be charged with murder for a killing that occurs during a felony, even if that person did not actually fire the weapon.
The defense argued that the statutes listed in he treaty criminalize only “simple homicide,” and that there is no counterpart to felony murder in Mexico. They also argued that Mexican law does not punish interference with commerce by robbery of an illegal substance — in this case, drugs being smuggled across the border — and does not recognize the crime of assault on a federal official unless that person was physically injured in fear for his life.
Finally, they said the treaty precludes the government here from imposing a true life sentence as life sentences in Mexico last no more than 70 years.
Ikuta, however, said the Mexican government, in issuing the extradition orders, said the U.S. charges conformed to the terms of the treaty. And those orders, she said, found similar provisions under Mexico’s Federal Penal Code for each of the charges in the indictment.
“The principle of dual criminality does not requires that the crimes be identical,” the judge wrote. “Rather only the ‘essential character’ of the acts criminalized by the laws of each country must be the same, and the laws substantially analogous.”
The appellate court also brushed back various other challenges to the specifics of each conviction.