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).
Legal Commentary by Attorney Terik Hashmi,
www.terikhashmiattorney.com.