Wednesday, September 5, 2018

Ayn Traylor-Sadberry, In case of extradition request from Mexico for a 2006 murder in Mexico, Sixth Circuit considers whether statute of limitations applies

In case of extradition request from Mexico for a 2006 murder in Mexico, Sixth Circuit considers whether statute of limitations applies

Samuel Francisco Solano Cruz was to host a goat roasting party for the municipal leaders of Santa Maria Natividad, a village in the State of Oaxaca, Mexico, and for the members of the town band on New Year’s Day 2006. He went to a New Year’s Eve party outside the local municipal hall to deliver the invitations. Shortly after he arrived he was approached by a man screaming “son of a bitch!” and who then shot him six times. A bystander, Antolin Cruz Reyes, who came to Solano Cruz’s help, was shot as well. The murderer then got in his truck and fled the scene. Both men died from their wounds.
Avelino Cruz Martinez, then a United States permanent resident (and a citizen since 2010) was accused by Solano Cruz’s family of the murders. Within two weeks of the shooting, Solano Cruz’s widow and parents met with Cruz Martinez’s wife and brother, who lived in Santa Maria Natividad, before a town clerk and signed an agreement stating that Cruz Martinez had “committed the homicide.” The agreement also provided that Cruz Martinez’s family would pay 50,000 pesos for the expenses incurred by Solano Cruz’s relatives as a result of the “unfortunate incident,” and that once the parties accept the agreement and enact its terms the matter shall be closed.

A few days after the families’ agreed, two eyewitnesses made sworn statements before public officials, pointing to Cruz Martinez as the New Year’s Eve murderer. On February 23, 2006, an Oaxacan judge issued an arrest warrant charging Cruz Martinez with “murder with the aggravating circumstance of unfair advantage,” and notified the public prosecutor’s office the next day.

Following the murders, Cruz Martinez returned to the United States—Lebanon, Tennessee. He traveled back to Mexico a couple of times.

When in 2009, an American consular official asked about the status of Cruz Martinez’s arrest warrant the Oaxacan court responded that it was “still pending and executable.” In May 2012, the Mexican government filed a diplomatic note with the United States Department of State, informing it of the charges against Cruz Martinez and requesting his “provisional arrest.” Over a year later, he was arrested by the American authorities. The Mexican officials filed a formal extradition request in August 2013.
Complying with the diplomatic, judicial, and quasi-judicial procedures, the Secretary of State filed Mexico’s extradition request with a federal magistrate judge in Tennessee. Cruz Martinez raised multiple challenges to his provisional arrest and to the extradition proceedings, which were rejected by the magistrate judge. The magistrate judge certified to the Secretary of State that Cruz Martinez could be extradited. Cruz Martinez then filed a habeas corpus action contesting the magistrate judge’s certification decision. He argued that his prosecution has become barred by (1) the relevant American statute of limitations and (2) the Speedy Trial Clause of the Sixth Amendment to the United States Constitution. The district court denied his petition. Cruz Martinez appealed.

The United States Court of Appeals for the Sixth Circuit affirms district court’s decision.
“’Extradition shall not be granted,’ Article 7 of the United States-Mexico Extradition Treaty says, ‘when the prosecution or the enforcement of the penalty’ for the charged offense ‘has become barred by lapse of time according to the laws of the requesting or requested Party.’ Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064-65.”

Cruz Martinez argued that the charged offense is analogous to second-degree murder under American federal law, meaning that a five-year limitations period applied to the charges. However, the Court agrees with the panel majority’s opinion that the statute of limitations did not expire even if the five-year period applies.
“‘[N]o person shall be prosecuted, tried, or punished for any [non-capital] offense,’ the five-year limitations statute provides, ‘unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.’ 18 U.S.C. § 3282(a). Because statutes of limitations protect defendants from excessive delay between the time of the offense and the time of prosecution, they stop running when the prosecution begins—which means, in American federal courts, when an indictment or information is returned. United States v. Marion, 404 U.S. 307, 320-23 (1971). But Mexico, which models its legal system not on Blackstone’s common law but on Napoleon’s civil law, lacks the sort of indictment and information procedures that exist in the United States. Miguel Sarré & Jan Perlin, ‘Mexico,’ in Criminal Procedure: A Worldwide Study 351, 372 (Craig M. Bradley ed., 2d ed. 2007). Does that mean there is nothing Mexico can do under § 3282 to prevent a ‘lapse of time’ from occurring? No: Because the issuance of an arrest warrant marks the end of the preliminary investigation and the beginning of the prosecution in Mexico, that event stops the American statute of limitations from running. And because a Mexican court issued an arrest warrant within two months of Cruz Martinez’s alleged offense, the five-year limitations period does not bar his prosecution.”
“The only other circuit to consider this question agrees. It held that ‘a Mexican arrest warrant is the equivalent of a United States indictment and may toll the United States statute of limitations’ for purposes of an extradition treaty. Sainez v. Venables, 588 F.3d 713, 717 (9th Cir. 2009). The Third Restatement of Foreign Relations Law echoes the point. ‘For purposes of applying statutes of limitation to requests for extradition,’ it notes, courts generally calculate the limitations period ‘from the time of the alleged commission of the offense to the time of the warrant, arrest, indictment, or similar step in the requesting state, or of the filing of the request for extradition, whichever occurs first.’ Restatement (Third) of the Foreign Relations Law of the United States § 476 cmt. e (1987).”
Cruz Martinez argued that Mexico should be able to satisfy § 3282 even though it does not have an indictment or information procedure. He further argued that American clock keeps ticking until Mexico does something that would stop the limitations period from running Under Mexican law, which cannot be an arrest warrant.
“[…] The extradition treaty, however, offers a defense to extradition when prosecution is barred ‘according to the laws of the requesting or requested Party,’ Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5065—a formulation that does not require us to mix and match national laws by applying Mexican legal requirements to American limitations periods. That language is especially significant given that some extradition treaties do demand this sort of jumbling, requiring the requested State to ‘take[] into consideration insofar as possible’ any ‘acts constituting an interruption or a suspension of the time-bar in the Requesting State.’ Extradition Treaty, U.S.-Belg., art. 2(6), Apr. 27, 1987, T.I.A.S. No. 97-901, at 2; see also Extradition Treaty, U.S.-Lux., art. 2(6), Oct. 1, 1996, T.I.A.S. No. 12,804, at 4. The American statute of limitations does not bar Cruz Martinez’s prosecution.”
In a separate argument Cruz Martinez stated that the treaty’s “barred by lapse of time” provision picks up the Speedy Trial Clause of the Sixth Amendment to the United States Constitution, which says that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The Court did not agree with this argument.
“[…] When the Sixth Amendment says ‘all criminal prosecutions,’ it refers to all prosecutions in this country, not anywhere in the world. See United States v. Balsys, 524 U.S. 666, 672-75 (1998). […][T]he guarantee applies to extradition proceedings, which are not ‘criminal prosecutions.’ See Martin v. Warden, 993 F.2d 824, 829 (11th Cir. 1993). […] The text and context of the treaty provision, the illuminating history behind it, and all precedential authority and scholarly commentary establish that the phrase ‘barred by lapse of time’ does not incorporate the American Constitution’s speedy-trial guarantee.”
“Text. Article 7, recall, prohibits extradition ‘when the prosecution or the enforcement of the penalty for the offense for which extradition has been sought has become barred by lapse of time according to the laws of the requesting or requested Party.’ Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064-65. Put less passively, time must do the barring. Yet the Sixth Amendment does not create a fixed time bar on trial initiation—a time limit after which the trial must be called off. As the Supreme Court has explained, the speedy-trial right is ‘consistent with delays’ (and thus consistent with lapses of time) and ‘depends upon circumstances,’ as it is ‘impossible to determine with precision when the right has been denied’ in our system of ‘swift but deliberate’ justice. Barker v. Wingo, 407 U.S. 514, 521-22 (1972) (emphasis added) (quotation omitted). The right is a ‘relative,’ ‘amorphous,’ and ‘slippery’ one. Id. at 522 (quotation omitted). Because the Sixth Amendment does not establish a time limit, fixed or otherwise, before a trial must start, it does not create a rule that ‘bar[s]’ criminal prosecutions due to ‘lapse of time.’”
“Not only does Cruz Martinez’s argument require us to add something to the Sixth Amendment that does not exist (a time bar), it requires us to subtract requirements of the Sixth Amendment that do exist. A criminal defendant cannot win a Sixth Amendment challenge by pointing to a calendar and counting off the days. He instead must show that, by balancing the four factors the Supreme Court has instructed us to consider in speedy-trial cases, he should receive relief. Id. at 530-33. The ‘[l]ength of delay,’ it is true, is one of those factors—but only one. Id. at 530. Courts also must weigh “the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant’ in determining whether a speedy-trial violation occurred. Id. Even if there has been considerable delay, for example, ‘a valid reason’ for that delay, ‘such as a missing witness, should serve to justify’ it. Id. at 531. If a defendant fails to object contemporaneously to the lapse of time, the Supreme Court has told us, that will also ‘make it difficult for [him] to prove that he was denied a speedy trial.’ Id. at 532. ‘[N]one of the four factors’—not even delay of a specified length—is ‘a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.’ Id. at 533. The Court could not be clearer: Lapse of time, standing alone, does not—cannot—violate the Speedy Trial Clause in the absence of at least some of the other factors. We know of no case in which a lapse of time by itself created a speedy-trial violation—or, to put it in the words of the treaty, in which the prosecution was ‘barred by lapse of time.’”
“Another textual clue points in the same direction. The treaty does not cover any and all ‘lapse[s] of time’ that may occur in a criminal case. It applies only to time lapses with respect to ‘the prosecution or the enforcement of the penalty’ for the charged offense. Extradition Treaty, U.S.-Mex., supra, art. 7, 31 U.S.T. at 5064-65. That language naturally applies to statutes-of-limitations periods that ‘bar[]’ the commencement of a ‘prosecution’ or ‘enforcement’ proceeding. It also naturally applies to limitations periods that ‘bar[]’ ‘penalt[ies]’ already handed down from being ‘enforce[d]’ to the extent any exist—limitations periods that, while generally unknown in the United States, are common in civil law countries like Mexico. See Yapp v. Reno, 26 F.3d 1562, 1568 (11th Cir. 1994). The same is not true for guarantees that apply after an indictment (or its equivalent) through the end of trial. Just as this treaty provision would not cover criminal procedure guarantees that apply to a trial already begun, it does not naturally apply to speedy-trial requirements that prohibit the criminal process, once started, from continuing. The speedy-trial right after all operates not by barring the initiation of a prosecution but by preventing it from continuing, see Marion, 404 U.S. at 320-23, and may not apply to the execution of sentences already pronounced, cf. United States v. Melody, 863 F.2d 499, 504-05 (7th Cir. 1988). These rights, like trial guarantees, usually kick in outside the two periods in which extradition limits apply: (1) the initiation of a prosecution and (2) the enforcement of a ‘judicially pronounced penalty of deprivation of liberty.’ Extradition Treaty, U.S.-Mex., supra, art. 1(1), 31 U.S.T. at 5061.”
The Court then looks for the answers in legal dictionaries, extradition treaties, state laws, precedents and commentaries.
“[…] In this case, as in many cases involving treaty interpretation, we have not one official text but two—the English and Spanish versions of the treaty, each of which is ‘equally authentic.’ Id., 31 U.S.T. at 5075. The English version of Article 7 bears the title ‘Lapse of Time,’ while the Spanish version says ‘Prescripción.’ Compare id., art. 7, 31 U.S.T. at 5064, with id., art. 7, 31 U.S.T. at 5083. And the phrase ‘barred by lapse of time’ reads, in the Spanish version of the text, ‘haya prescrito,’ using a verb form related to the noun ‘prescripción.’ Compare id., art. 7, 31 U.S.T. at 5065, with id., art. 7, 31 U.S.T. at 5083. We must interpret the translated documents in tandem, because, ‘[i]f the English and the Spanish parts can, without violence, be made to agree, that construction which establishes this conformity ought to prevail.’ United States v. Percheman, 32 U.S. (7 Pet.) 51, 88 (1833). […]”
“The English and Spanish texts of the 1978 extradition treaty ‘conform[]’ quite easily, it turns out, because ‘prescripción’ means ‘statute of limitations.’ Bilingual legal dictionaries tell us as much, with one Spanish-English dictionary providing ‘[s]tatute of limitations’ as the first definition of ‘prescripción.’ Henry Saint Dahl, Dahl’s Law Dictionary 385 (6th ed. 2015). Mexican legal provisions tell us as much, because Article 88 of the Code of Criminal Procedure of Oaxaca—the state where Cruz Martinez’s alleged crimes occurred—uses the phrase ‘[c]ómputo de la prescripción’ to describe the ‘[c]alculation of the [s]tatute of [l]imitations.’ R. 2-19 at 2, 7. Previous treaties tell us as much, because the 1899 United States-Mexico extradition treaty translates the phrase ‘has become barred by limitation’ (a phrase that, as Cruz Martinez concedes, refers only to statutes of limitations) as ‘la prescripción impida.’ Treaty of Extradition, U.S.-Mex., art. III(3), Feb. 22, 1899, 31 Stat. 1818, 1821. […]”
“The practice of using these terms as synonyms within the law of extradition continues today. Take our treaty with South Korea, which, in a section titled ‘Lapse of Time,’ permits the parties to deny extradition ‘when the prosecution or the execution of punishment’ for the charged offense ‘would have been barred because of the statute of limitations of the Requested State.’ Extradition Treaty, U.S.-S. Kor., art. 6, June 9, 1998, T.I.A.S. No. 12,962, at 4; see Extradition Treaty, U.S.-Arg., art. 7, June 10, 1997, T.I.A.S. No. 12,866, at 5 (stating, in an article titled ‘Lapse of Time,’ that ‘[e]xtradition shall not be denied on the ground that the prosecution or the penalty would be barred under the statute of limitations in the Requested State) […]”
“The phrase ‘lapse of time’ also holds a similar meaning in American law, where it has been used in the context of state laws applying out-of-state statutes of limitations to out-of-state causes of action. Consider the Minnesota borrowing statute upheld by the Supreme Court in Canadian Northern Railway Co. v. Eggen. 252 U.S. 553 (1920). The statute provided that, ‘[w]hen a cause of action has arisen outside of this state, and, by the laws of the place where it arose, an action thereon is there barred by lapse of time, no such action shall be maintained in this state unless the plaintiff be a citizen of the state who has owned the cause of action ever since it accrued.’ Id. at 558 (emphasis added) (quotation omitted). The Court characterized this statute, phrased in ‘precisely the same’ terms ‘as those of several other states,’ as granting a ‘nonresident the same rights in the Minnesota courts as a resident citizen has, for a time equal to that of the statute of limitations where his cause of action arose.’ Id. at 560 (emphasis added).”
“Every case on the books has concluded that this phrase encompasses only statutes of limitations. The Eleventh Circuit faced Cruz Martinez’s precise argument and rejected it. Here is what the court said:
‘Weighing heavily against [the accused’s] position is the fact that for over a century, the term `lapse of time’ has been commonly associated with a statute of limitations violation. . . . Thus, we hold that the `lapse of time’ provision in Article 5 of the [United States-Bahamas] Extradition Treaty refers to the running of a statute of limitations and not to a defendant’s Sixth Amendment right to a speedy trial.’ Yapp, 26 F.3d at 1567-68. A district court has reached the same conclusion. Gonzalez v. O’Keefe, No. C 12-2681 LHK (PR), 2014 WL 6065880, at *2-4 (N.D. Cal. Nov. 12, 2014). […]”
“So far as our research and the research of the parties have revealed, all scholars see it the same way. The Third Restatement of Foreign Relations Law notes that, ‘[u]nder most international agreements, state laws, and state practice,’ an individual ‘will not be extradited . . . if the applicable period of limitation has expired.’ Restatement, supra, § 476. The commentary to that provision notes that some treaties prohibit extradition if prosecution ‘has become barred by lapse of time,’ ‘if either state’s statute of limitations has run,’ or if there is a ‘time-bar.’ Id. § 476 cmt. e. Eliminating any doubt, the section concludes by noting that, ‘[i]f the treaty contains no reference to the effect of a lapse of time, neither state’s statute of limitations will be applied.’ Id. The only way to make sense of the Restatement’s discussion is to recognize that each of these terms—‘period of limitation,’ ‘lapse of time,’ ‘time-bar,’ ‘statute of limitations’—means the same thing.”
“Because the constitutional speedy-trial right has no fixed time limit, in contrast to statutes of limitations, what extraditee will not raise the claim in all of its indeterminate glory? The mutability of the right makes it impossible to know how much delay is too much delay. Take the alleged delay in Cruz Martinez’s case: around six years. Although a delay of one year or more is presumptively prejudicial, six years may not be enough to state a speedy-trial claim in view of other considerations, our court has said, when the government is not to blame for the delay and the defendant does not identify any evidence of prejudice. See United States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006). […]”
The Court concluded that “[i]n the final analysis, Cruz Martinez’s argument comes up short. No matter where we look—to the text of this treaty (in English and Spanish), to the text of other treaties, to historical principles underlying those treaties, to judicial decisions interpreting those treaties, to commentaries explaining those treaties, to guidance explaining how to draft those treaties, to the Factor default rule—all roads lead to the same conclusion. The United States and Mexico did not impose a speedy-trial limit when they forbade the extradition of fugitives whose ‘prosecution’ was ‘barred by lapse of time.’”
The Court affirmed district court’s decision.
Judge Clay dissented.
 “The majority’s premise—that the phrase ‘lapse of time’ refers only to a fixed statutory limitations period—is not supported by any of the multitude of cases, treaties, or texts it cites. The majority points to no authority of any kind that associates this distinctive language with, much less restricts it to, statutes of limitation. ‘Lapse of time’ is a phrase frequently used in connection with any number of legal doctrines that operate based on the passage of time—including speedy trial rights. These uses are too numerous and varied to permit the conclusion that the term ‘lapse of time’ is so strongly or so inherently associated exclusively with statutes of limitation that the treaty’s drafters relied on it as a term of art to refer solely to statutes of limitation. Instead, the frequent use of the phrase in connection with constitutional speedy trial claims confirms that a literal reading of the text of Article 7 incorporates the Speedy Trial Clause.”
“For these reasons, this case should be remanded for the district court to determine whether Cruz Martinez’s Speedy Trial Clause rights were violated.”
Judge Bernice Bouie Donald also dissented. “The treaty’s text is ambiguous. The English version’s ‘lapse of time’ language is broad enough to include the Sixth Amendment’s speedy trial guarantee as Judge White’s concurrence and Judge Clay’s dissent ably demonstrate. However, the Spanish version’s use of ‘prescripción’ is narrow enough to exclude the Sixth Amendment’s speedy trial guarantee as the majority’s erudite opinion makes clear. Since the treaty appears to say one thing in English and another in Spanish, we cannot resolve this case through a plain-meaning textual analysis. That said, I agree with Judge Clay that history and policy considerations support reading the Sixth Amendment’s speedy trial clause into the treaty.”

Citation: Martinez v. US, 828 F.3d 451 (6th Cir. 2016).

*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: