BRIEF OF THE LAWYERS COMMITTEE FOR HUMAN RIGHTS ASAMICUS CURIAE

In the Matter of the Surrender of Elizaphan Ntakirutima

United States District Court
Southern District of Texas Laredo Division

Argument

III. The United States Has Demonstrated Ample Probable Cause to Surrender Respondent

Notwithstanding the Magistrate Judge's ruling that he did not have jurisdiction to entertain the United States' surrender request, the Magistrate Judge went on to consider the United States' request on its merits, and concluded that it did not establish probable cause to believe that Ntakirutimana had committed the crimes charged against him. Although recognizing that he could not consider evidence contradicting the evidence presented in the surrender request, the Magistrate Judge ruled that he was nevertheless "free to exercise [his] discretion in judging the credibility of the evidence presented. . . ." 988 F. Supp. at 1042. On this basis, the Magistrate Judge then gave intense scrutiny to the evidence submitted, found reasons to discredit much of that evidence on a variety of grounds, and thus concluded that the evidence did not establish probable cause.

The Magistrate Judge applied an incorrect standard in reviewing the evidence submitted in support of the surrender request and thereby reached an erroneous result. The United States, in its second request for surrender, has submitted additional proof to satisfy many of the concerns raised by the Magistrate Judge, and there should no longer be any serious question that the evidence is now sufficient to meet the probable cause standard. But to the extent that the issues raised by the Magistrate Judge may remain, the Court should be aware of the error in the Magistrate Judge's standard and result.

As the Magistrate Judge recognized, 988 F. Supp. at 1042, a court reviewing a surrender request is required to apply the "probable cause" standard. See, e.g., Escobedo v. United States, 623 F.2d 1098, 1102 (5th Cir.) (test is "the existence of probable cause to sustain the charges against petitioners 'or, in other words, the existence of a reasonable ground to believe the accused guilty'") (citation omitted), cert. denied, 449 U.S. 1036 (1980). Section 3184 provides that the court must determine whether the evidence is "sufficient to sustain the charge under the provisions of the proper treaty or convention." 18 U.S.C. § 3184. The Surrender Agreement, in turn, states that the evidence must establish that "there is a reasonable basis to believe that the person sought has committed the violation or violations for which surrender is requested." Surrender Agreement, Art. 2, ¶ 3. There is no dispute here that the "reasonable basis" test of the Surrender Agreement is functionally equivalent to the "probable cause" standard generally applied in extradition proceedings.

In applying the probable cause standard, the Court must bear in mind the special nature of extradition proceedings. The Court must not impose too high a standard on the surrender request, because "[t]he result would be that the foreign government, though entitled by the terms of the treaty to the extradition of the accused for the purpose of a trial where the crime was committed, would be compelled to go into a full trial on the merits in a foreign country, . . . in plain contravention of the intent and meaning of the extradition treaties." Collins v. Loisel, 259 U.S. 309, 316 (1922). As the Supreme Court explained in Collins, "[t]he function of the committing magistrate is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction." Id. Accordingly, it is well settled that extradition proceedings can be based on hearsay, Escobedo, 623 F.2d at 1102 n.10 —- indeed, the Court in Collins held that extradition could be based on "unsworn statements of absent witnesses." 259 U.S. at 317. Similarly, the extraditee has no right to present evidence attempting to support a defense, see Collins, 259 U.S. at 316; Jimenez v. Aristeguieta, 311 F.2d 547, 556 (5th Cir. 1962), cert. denied, 373 U.S. 914 (1963); rather, the Court's role is to determine whether the papers in support of the extradition are sufficient to make out a prima facie case.

Contrary to the Magistrate Judge's ruling, the Court does not have free rein to disregard on credibility grounds the evidence submitted in support of a surrender request. Although the law on this point is not settled, see Gov't Mem. at 19-20, the weight of authority and the better rule is that the Court has no power to reject documentary evidence presented to it on credibility grounds. See, e.g., Eain v. Wilkes, 641 F.2d 504, 511 (7th Cir.) ("[a]n accused in an extradition hearing has no right . . . to pose questions of credibility as in an ordinary trial"), cert. denied, 454 U.S. 894 (1981); Shapiro v. Ferrandina, 478 F.2d 894, 904-05 (2d Cir.), cert. dismissed, 414 U.S. 884 (1973). As Judge Friendly explained in Shapiro, the Magistrate Judge's rejection of the evidence presented on credibility grounds is inconsistent with the limited nature of an extradition hearing:

The magistrate's function is to determine whether there is "any" evidence sufficient to establish reasonable or probable cause, and the extraditee's right to introduce evidence is thus "limited to testimony which explains rather than contradicts the demanding country's proof . . . ." The judge's refusal to examine the credibility of the testimony and statements included in the translated material was clearly proper, since the declarants were not before him. . . . Such a contest [over credibility] . . . should properly await trial in Israel. 478 F.2d at 905 (citation omitted).

The Magistrate Judge's approach is also inconsistent with the Supreme Court's admonition in Collins that extradition could properly be based on "unsworn statements of absent witnesses." 259 U.S. at 317. While an extradition judge would reasonably be entitled to make credibility determinations regarding any witnesses who appear before him, it is hard to see on what basis the judge could make reasoned judgments about the credibility of witness statements and other documentary evidence.

This point is amply demonstrated by Magistrate Judge Notzon's rejection of the evidence here. The Magistrate Judge's attempt to assess the credibility of the witness statements presented here was riddled with errors, and only serves to demonstrate that this approach is not feasible. For example, the evidence presented includes eyewitness testimony that Ntakirutimana personally participated in the mass murder of Tutsis. As the Magistrate Judge acknowledged, Witness H stated that "he saw the Extraditee, along with three others, armed with guns shoot at a group of Tutsis and that some of these Tutsis died." 988 F. Supp. at 1043. It is inconceivable that this evidence, in the context of the massacres described in the extradition affidavits, is not sufficient to establish probable cause to believe that Ntakirutimana is guilty of the crimes charged. Yet the Magistrate Judge states a variety of grounds for refusing to accept that this testimony is sufficient. The Magistrate Judge points out that there is no statement that the witnesses have given reliable information in the past, id., but this observation is utterly inapposite. The witnesses here, including Witness H, are all "ordinary civilians," who happened to be eyewitnesses to terrible crimes. Id. It is well settled that such eyewitness statements are "presumed credible without subsequent corroboration." United States v. Blount, 123 F.3d 831, 835 (5th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 895 (1998).

The Magistrate Judge also objected that the witnesses are not identified, except by letter. 988 F. Supp. at 1043. Apart from the fact that it is hard to see how the names of these witnesses would have assisted the Magistrate Judge in making his determination of probable cause, the use of letters in place of names was plainly intended to protect the safety of witnesses, against a background of the most extreme danger of retaliation from Hutu forces. See Prosper Declaration ¶ 15(g). This was plainly a reasonable security measure, mandated by the Prosecutor's obligation to protect the safety of witnesses, id., and has no bearing on the credibility of any witness' testimony.

The Magistrate Judge also questioned the reliability of the witness' identification of a photograph of Ntakirutimana. 988 F. Supp. at 1043. However, virtually all of the witnesses, including Witness H, knew Ntakirutimana personally. Prosper Declaration ¶ 15(e). In these circumstances, it is well settled that "[t]here is no question of reliability" of an identification where a witness knows a defendant personally, and a photograph is shown to the witness simply to verify that the photograph is the same person about whom the witness has been talking. See, e.g., United States v. Fernandez-Roque, 703 F.2d 808, 814 (5th Cir. 1983).

Similarly, the Magistrate Judge objected to the fact that the officer making the affidavit did not personally interview the witnesses, and was relying on the reports of other officers. 988 F. Supp. at 1043. But this fact, too, is constitutionally irrelevant to the existence of probable cause. See, e.g., United States v. Hensley, 469 U.S. 221, 231 (1985) ("admissibility turns on whether the officers who issued the flyer possessed probable cause," not whether arresting officer has personal knowledge of the facts) (emphasis added).

Finally, the Magistrate Judge pointed out that "there is not even any indication that these witnesses were placed under oath prior to making their statements." 988 F. Supp. at 1043. Again, however, this is an improper consideration in an extradition hearing. As the Supreme Court held in Collins, extradition is properly based on the "unsworn statements of absent witnesses." 259 U.S. at 317.

For similar reasons, the Magistrate Judge erred in refusing to accept Witness I's testimony that he saw Ntakirutimana shooting at Tutsi civilians. 988 F. Supp. at 1043-44. The Magistrate Judge also erred as a matter of law in concluding that the testimony of Witnesses C and H, that Ntakirutimana personally instructed other armed Hutus to take the roof off his church so that it could not be used as a shelter by Tutsis attempting to hide from murderous gangs of Hutus, did not at least show Ntakirutimana's complicity in genocide. 988 F. Supp. at 1044 & n.6. The Magistrate Judge's conclusion that this evidence was insufficient to make out a prima facie case that respondent participated in the Bisesero attacks is profoundly mistaken, and reflects a fundamental misunderstanding of the role of the extradition magistrate.