[Congressional Record Volume 149, Number 161 (Friday, November 7, 2003)]
[Senate]
[Pages S14275-S14278]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




SENATE CONCURRENT RESOLUTION 79--EXPRESSING THE SENSE OF CONGRESS THAT 
THE PRESIDENT SHOULD SECURE THE SOVEREIGN RIGHT OF THE UNITED STATES OF 
 AMERICA AND THE STATES TO PROSECUTE AND PUNISH, ACCORDING TO THE LAWS 
 OF THE UNITED STATES AND THE SEVERAL STATES, CRIMES COMMITTED IN THE 
 UNITED STATES BY INDIVIDUAL WHO SUBSEQUENTLY FLEE TO MEXICO TO ESCAPE 
                              PROSECUTION

  Mrs. FEINSTEIN (for herself, Mr. Brownback, Mr. Nelson of Florida, 
Mrs. Hutchison, Mr. Bingaman, Mr. Domenici, Mr. Kyl, Mr. Campbell, and 
Mr. Hatch) submitted the following concurrent resolution; which was 
referred to the Committee on Foreign Relations:

                            S. Con. Res. 79

       Whereas, under the Extradition Treaty between the United 
     States of America and the United Mexican States, signed at 
     Mexico City May 4, 1978, and entered into force January 25, 
     1980 (31 UST 5059) (hereafter the ``Extradition Treaty''), 
     Mexico has refused to extradite unconditionally to the United 
     States fugitives facing capital punishment;
       Whereas the Mexican Supreme Court ruled in October 2001, 
     that life imprisonment violates the Constitution of Mexico, 
     and Mexico has subsequently repeatedly violated the 
     Extradition Treaty by refusing to extradite unconditionally 
     criminals who face life sentences in the United States;
       Whereas numerous individuals have committed serious crimes 
     in the United States, fled to Mexico to avoid prosecution, 
     and have not been brought to justice in the United States 
     because of Mexico's interpretation of the Extradition Treaty;
       Whereas these individuals include the persons responsible 
     for the April 29, 2002, murder of Deputy Sheriff David March, 
     the July 17, 2000, killing of Officer Michael Dunman, the 
     August 29, 1998, murder of 12 year old Stephen Morales, the 
     April 9, 1999, attempted murder of Anabella Van Perez and the 
     subsequent August 26, 1999, murder of her father, Carlos 
     Vara, and the December 22, 1989, murder of Mike Juan;
       Whereas attorneys general from all 50 States, the National 
     League of Cities, and numerous elected officials, 
     municipalities, and law enforcement associations have asked 
     the United States Attorney General and the Secretary of State 
     to address this extradition issue with their counterparts in 
     Mexico;
       Whereas United States Government officials at various 
     levels have raised concerns about the extradition issue with 
     their counterparts in Mexico, including presenting a Protest 
     Note to the Government of Mexico objecting that Mexico's 
     interpretation of the Extradition Treaty is ``unsupported by 
     the Treaty'' and effectively ``eviscerates'' it, with few 
     positive results; and
       Whereas the Extradition Treaty, as interpreted by Mexico, 
     interferes with the justice system of the United States and 
     encourages criminals to flee to Mexico; Now, therefore, be it
       Resolved by the Senate (the House of Representatives 
     concurring), That it is the sense of Congress that the 
     President should address Mexico's failure to fulfill its 
     obligations under the Extradition Treaty between the United 
     States of America and the United Mexican States, signed at 
     Mexico City May 4, 1978, and entered into force January 25, 
     1980 (31 UST 5059), by renegotiating the treaty or taking 
     other action to ensure that the possibility that criminal 
     suspects from Mexico may face capital punishment or life 
     imprisonment will not interfere with the unconditional and 
     timely extradition of such criminal suspects to the United 
     States.
                                  ____

  Mrs. FEINSTEIN. Mr. President, I rise to submit S. Con. Res. 795, a 
Senate concurrent resolution calling upon the President to address 
Mexico's failure to fulfill its obligations under the U.S.-Mexico 
Extradition Treaty, which entered into force in January 1980. I am 
delighted that Senators Brownback, Bill Nelson, Hutchison, Bingaman, 
Domenici, Kyl, and Campbell join me in submitting this resolution.
  Specifically, this resolution calls upon President Bush to 
renegotiate the Extradition Treaty or take other actions to ensure that 
the U.S. can extradite serious criminals back to the U.S. for 
appropriate prosecution and punishment.
  In my view, this treaty--at least as interpreted by Mexico--is simply 
not working as intended. While the U.S. is currently attempting to 
extradite hundreds of fugitives from Mexico, since 1996, Mexico has 
sent back only a relative handful every year. For example, in fiscal 
years 1996 through 2002, Mexico only extradited an average of 14 
individuals to the U.S. each year. Even worse, Mexico's recent 
interpretation of this treaty has effectively eliminated our ability to 
extradite persons charged with serious crimes who flee to Mexico to 
avoid prosecution in the United States.
  This interpretation has jeopardized the safety of both American and 
Mexican citizens, undermined the integrity of our criminal justice 
system, denied basic rights and closure to crime victims, and allowed 
serious felons to escape just punishment. The result is that Mexico is 
becoming a safe haven for hard-core criminals. If you steal a car in 
the U.S., Mexico will return you to face prosecution and punishment. If 
you kill the driver, Mexico will protect you.
  The problem in a nutshell is that, since October 2001, Mexico has 
read the U.S.-Mexico Extradition Treaty as barring the extradition to 
the United States of anyone who faces a potential life term. In other 
words, if a person commits a serious crime in the U.S.--one that could 
subject them to a maximum life term--and heads south, Mexico will 
refuse to extradite that person to the U.S. to face prosecution and 
punishment in this country.
  While it has been difficult to determine the full scope of the 
problem, I am informed by prosecutors in California that, as a result 
of Mexico's interpretation of the Extradition Treaty, there are as many 
as 350 people who have committed murder and other serious crimes in 
California who have either not been extradited or have been effectively 
rendered non-extraditable.

[[Page S14276]]

  These 350 people have thus escaped appropriate prosecution and 
punishment under California law. Many of these people are living free 
and unpunished in Mexico. In some cases, we even know where they are.
  Let me quote from a recent Santa Barbara News Press article: A half 
dozen people wanted in the slayings of Santa Barbara residents are 
believed to be living free in Mexico. Santa Barbara police detectives 
even know where three of them live. But there's not much they can do 
about it. ``If I had unfettered access to the proper investigative 
tools and contacts, we could have them in custody in a matter of 
days,'' said Detective Tim Roberts . . . ``But that's not the case.''
  Let me give you an example of another especially heinous case.
  On April 29, 2002, Armando Garcia, a Mexican national who had been 
previously charged in the U.S. with two counts of attempted murder, 
allegedly shot and killed, execution-style, 33-year-old Los Angeles 
County Deputy Sheriff David March during a routine traffic stop in 
Irwindale, CA. Garcia then fled to Mexico, where he remains a free man.
  Los Angeles District Attorney Steve Cooley has not formally requested 
Garcia's extradition because he says that there is no point. Mexico 
will demand that Cooley promise that Garcia will not receive life in 
prison for his crime--a promise that cannot be made because in this 
country sentences are up to a judge to set, once a person has been 
convicted of a crime. The results is that Garcia remains at large in 
Mexico.
  And earlier this year there was a horrific case in Santa Cruz 
implicating the Extradition Treaty. Miguel Ramirez Loza, 27 years old, 
allegedly attacked his 17-year-old girlfriend in an abandoned preschool 
building, slashing her throat and then spitting on her. As his 
girlfriend lay dying, he then raped the victim's 17-year-old friend. 
Loza's girlfriend was in a coma for months after the crime and just 
recently died.

  Loza is now in Mexico and is apparently in a Mexican jail as a result 
of a stabbing in Mexico unrelated to the Santa Cruz incident. However, 
according to Santa Cruz District Attorney Bob Lee, Loza cannot be 
extradited for the murder and rape in California because of Mexico's 
interpretation of the Extradition Treaty.
  It is true that Mexico does sometimes prosecute individuals in Mexico 
who committed crimes in the U.S. under Article IV of its Criminal Code. 
But often Mexico fails to do this. And, in any event, there is no 
substitute for extraditing the person to the United States.
  There are credible reports that defendants in Mexico sometimes buy 
their acquittals. And, at least by U.S. standards, Mexican standards of 
justice can be quite low. Trials often take place with no testimony and 
no witnesses. Victims and their families are not invited or consulted. 
And sentences--often reduced on appeal--frequently bear little 
resemblance to those authorized by U.S. sentencing laws.
  Not surprisingly, according to an article in the Las Vegas Review-
Journal, ``More than a dozen prosecutors in Nevada, California and 
Arizona who were interviewed for this story criticized Article IV as an 
ineffectual alternative to extradition.'' One prosecutor, Jan Maurizi 
of the Los Angeles District Attorney's Office, stated that she ``sent 
demands to the Mexican government asking what happened to 97 Article IV 
cases that have seemingly disappeared from the justice system. Mexico . 
. . never responded. But from others we've talked to in unofficial 
channels, it's clear the vast majority of them are grossly inadequate 
sentences. Most of them, nothing happens.''
  Another prosecutor, Val Jimenez, the special agent supervisor of the 
Foreign Prosecution Unit at the California Attorney General's Office, 
has mentioned one recent case where a defendant ``got 20 years for 
doing a homicide, appealed, and he was out in 18 months.'' And even if 
defendants were convicted, they may not serve real time. It was not 
until last year that Mexico finally tore down the infamous La Mesa 
State Penitentiary in Tijuana. La Mesa was a place where prisoners were 
free to purchase $25,000 townhomes with cell phones, tiled bathrooms, 
Jacuzzis, microwaves, computers, DVD players, and guard dogs such as 
Rottweilers. One murder in the prison was committed with a Uzi.
  The U.S.-Mexico Extradition Treaty provides that neither country is 
bound to deliver up its nationals for extradition. It further provides 
that where the offense for which extradition is sought is punishable by 
death, a country may refuse to extradite unless the country seeking 
extradition assures that it will not impose the death penalty. Under 
the Treaty, the death penalty is the sole punishment for which 
assurances may be required. For decades, Mexico has extradited suspects 
to California and other states without inordinate problems. Then, in 
October 2001, the Mexican Supreme Court ruled that life imprisonment 
violates the Constitution of Mexico and extended this interpretation to 
the Extradition Treaty. Specifically, the Court decided that Mexico 
could no longer extradite a fugitive who is subject to life 
imprisonment with or without the possibility of parole, unless 
assurances are given that guarantee a determinate term of years.
  Here is what the Mexican Supreme Court said in Opinion No. 125/2001, 
which is about a half-page long: [T]he punishment of life imprisonment 
is considered an unusual penalty and is prohibited by . . . article 22 
of the [Mexican Constitution], inasmuch as it departs from the 
essential purpose of the penalty, which is the rehabilitation of the 
offender to incorporate him/her into society. It is, therefore, 
unquestionable that the requesting [i.e., extraditing] State must bind 
itself not to impose the penalty of life imprisonment, only another 
less serious punishment.
  Article 22 of the Mexican Constitution prohibits ``[p]unishment by 
mutilation and extreme cruelty, branding, flogging, beating with 
sticks, torture of any kind, excessive fines, confiscation of property 
and any other unusual or extreme penalties. . . .''

  In light of the fact that the Extradition Treaty prohibits Mexico 
from extraditing criminals to the U.S. unless the U.S. agrees to waive 
the death penalty, it is interesting to note that Article 22 of the 
Mexican Constitution specifically allows the death penalty for ``high 
treason committed during a foreign war; parricide; murder that is 
treacherous, premeditated, or committed for profit; arson; abduction; 
highway robbery; piracy; and grave military offenses.''
  So, in other words, according to the Mexican Supreme Court, the 
Mexican Constitution allows the death penalty for highway robbery in 
Mexico but, should an American criminal murder a police officer in 
California and then flee to Mexico, Mexico will refuse to turn this 
person over to the U.S. if he would face either the death penalty or a 
possible life term.
  In my view, this makes no sense. However, Mexico as a sovereign 
nation is free to interpret its domestic law as it sees fit. I do not 
quarrel with their interpretation of their own law. But I do question 
whether Mexico can unilaterally rewrite the U.S.-Mexican Extradition 
Treaty. And that is exactly the effect of its interpretation of the 
Treaty as barring extradition to the U.S. of any alleged criminal who 
faces a possible life term. In fact, Mexico's interpretation of the 
Treaty is unsupported by and inconsistent with the Treaty's language, 
purpose, structure, and history. It is also conflicts with the Vienna 
Convention on the Law of Treaties, which states that a treaty shall be 
interpreted ``in accordance with the ordinary meaning to be given to 
the terms of the treaty in their context and in light of its object and 
purpose.''
  As the U.S. State Department has made clear in a Protest Note to the 
Mexican Government after the October 2001 decision, [R]equiring 
assurances for a punishment other than the death penalty is unsupported 
by the Treaty, which provides the substantive extradition requirement. 
. . . To give [the Treaty] the reading Mexico has given it eviscerates 
the Treaty, for such a reading would disregard the substantive 
exceptions found in Articles 5 through 9, and would permit each Party 
to refuse each other's extradition requests based on its domestic law 
on sentencing, which could be changed unilaterally at any time, even if 
that change rendered the law inconsistent with the Treaty.

[[Page S14277]]

  Moreover, Mexico's interpretation of the Treaty has made it 
effectively impossible to extradite from Mexico individuals who commit 
murder or other serious crimes in California and many other States. In 
California, for example, over 40 different crimes are punishable by 
possible life sentences and neither a judge nor a prosecutor can give 
assurances of a determinate term for these crimes. As a result, 
Mexico's policy encourages people committing serious crimes in 
California to flee to Mexico and escape just punishment. Indeed, 
individuals in the United States with a criminal history have a 
perverse incentive to kill an arresting police officer and head for 
Mexico rather than face possible prosecution and imprisonment in the 
United States.
  Given Mexico's interpretation of the Treaty, the only way to 
extradite a Mexican national charged with a ``life'' crime is to seek 
extradition on reduced charges punishable by a determinate sentence. 
But this would mean treating more harshly those who commit a crime and 
remain in California than those who commit the same crime and flee to 
Mexico. This is not only unfair and a blow to the integrity of our 
criminal justice system. But it also just encourages criminals to flee 
to Mexico to reduce their potential punishment.
  Moreover, it is unclear exactly what assurances will suffice. In at 
least one Federal major narcotics trafficking case, a Mexican court 
determined that a twenty-year sentence was ``cruel and unusual'' and 
thus unconstitutional. And some Mexican courts have ruled that only a 
judge can give sufficient assurances--a legal impossibility under 
California's judicial system.
  Mexico's interpretation of the U.S.-Mexico Extradition Treaty has 
unquestionably had a particularly harmful effect on my home state of 
California. I would like to commend the Los Angeles District Attorney 
Steve Cooley and Deputy District Attorney Jan Maurizi for their work in 
identifying cases of individuals who have committed murder and other 
serious crimes in California who have either not been extradited or 
have been effectively rendered non-extraditable. As I noted before, 
there are at least 350 such cases just in my home state. Many district 
attorneys do not keep adequate records of which suspects fled to 
Mexico, which cases are potentially extraditable, and which cases have 
been or could be subject to Article IV prosecution.

  In fact, when we asked the National Association of District Attorneys 
to conduct a survey of how many cases have been affected by Mexico's 
interpretation of the Treaty, it received responses from only 17 
jurisdictions, and much of this information was anecdotal. This survey, 
though, does demonstrate that the problem caused by Mexico's 
interpretation of the Extradition Treaty also afflict a number of other 
states. Based on the information we received, there are at least 60 
cases around the country outside of California--and this number 
probably grossly understates the problem. These cases are in Arizona, 
Florida, Hawaii, Nevada, New York, Oregon, Tennessee, Texas, and 
Washington. These numbers, though, do not tell whole story. In every 
case, there is a horrible crime, a victim, a shattered family, and a 
horrible injustice.
  I have already discussed a couple of specific criminal cases 
implicating the U.S.-Mexico Extradition Treaty. But now I would like to 
talk about four more. In every case, the perpetrator of a heinous crime 
has escaped appropriate punishment because of Mexico's interpretation 
of the U.S.-Mexico Extradition Treaty.
  In August of 1999, Daniel Perez, a Mexican national, was convicted in 
absentia in Los Angeles County by a jury for the crimes of attempted 
first degree murder, use of a firearm, espousal battery, kidnapping, 
false imprisonment and stalking his estranged wife.
  Perez and the 21-year-old victim, Anabella Vera, were separated. They 
met at a pizza place. After kidnapping her at gunpoint and terrorizing 
her for two hours, Anabella finally convinced Perez that she would 
return home with him. Perez then drove Anabella to her car. After 
Anabella tried to drive away from him, Perez chased her in his car, 
ramming her vehicle and forcing her to run red lights. Ultimately, 
Anabella became stuck in traffic and, in a desperate bid to save her 
life, abandoned her car and tried to flee. Perez then caught Anabella 
at a gas station and shot her in the head. Miraculously, she survived.
  During the trial and while out on bail, Perez drove to Fontana, CA to 
the home of Anabella's father, who had been a key witness against 
Perez. In front of Anabella's siblings, Perez shot and killed 
Anabella's father. Perez then allegedly fled to Mexico, where he is 
still at large.
  Perez was sentenced in absentia in Los Angeles County for attempted 
murder to a term of 33 years to life, plus an additional life term. In 
addition, the San Bernardino County District Attorney's Office has 
charged Perez with the murder of the victim's father and the special 
circumstances of killing a witness. These charges carry a potential 
punishment of life in prison without the possibility of parole or, if 
it is not waived, the death penalty. Because Mexico does not recognize 
convictions in absentia, my understanding is that Mexico will neither 
extradite Perez for attempted murder nor prosecute him under Article IV 
of the Mexican Federal Penal Code.
  Alvara Luna Jara has been charged with the special circumstances 
murder of 12-year-old Steven Morales and the attempted murder of three 
others. On August 29, 1998, Steven was playing with several other 
children in front of their apartment, near three members of a local 
sheet gang. As Jara drove by, he and the three gang members exchanged 
hand gestures. Jara then extended his arm out of the car window and 
fired three rounds into the crowd, killing Steven with a gunshot to the 
head. Jara then fled to Mexico. If convicted in the United States, Jara 
could face life without possibility of parole or, if it is not waived, 
the death penalty. However, while Jara is not a Mexican national, the 
Mexican government has refused to deport him because his parents are 
Mexican nationals. After this refusal, Los Angeles District Attorney 
Cooley began formal extradition proceedings. However, because of 
Mexico's interpretation of the October 2000 Mexican Supreme Court 
decision, Cooley never submitted the formal request.
  On May 7, 1988, Father Nicholas Aguilar Rivera, a Catholic priest, 
was charged with 19 counts of child molestation. The day after he was 
charged, Father Rivera fled to Mexico. Although the case was supposed 
to be prosecuted promptly under Article IV, Mexican prosecutors failed 
to submit the case for prosecution until 1995. The Mexican court 
dismissed the matter as untimely and entered an acquittal. Now, both 
countries are barred from further prosecution.
  On May 17, 1998, Ruben Hernandez Martinez and Luis Castanon allegedly 
broke into the Nashville apartment of Kelly Quinn and her roommate 
after waiting for Ms. Quinn to return home. They then attacked her, 
raping her continuously for hours. When they were done, they made Ms. 
Quinn shower to remove any DNA evidence. However, Ms. Quinn was able to 
conceal semen that was on her neck. Castanon was arrested and, on the 
basis of fingerprint and serology evidence, convicted of aggravated 
sexual assault. He was sentenced to 60 years. Martinez, whom Nashville 
police believe committed several other rapes as well, fled to Mexico. I 
am informed that, while Martinez has been in custody in a Mexico City 
jail for over a year, Mexico has still refused to make a decision as to 
whether they will extradite him.
  The United States can and must retain discretion to prosecute and 
punish its most dangerous and violent offenders who commit crimes in 
the United States according to U.S. laws. Criminals should not be 
allowed to escape justice in the U.S. for the price of a bus ticket to 
Mexico.
  I would now like read a letter I received from a youngster in 
California about this problem. Here is what he says:

       My mom is a deputy sheriff for Los Angeles. Every night she 
     goes to work. I say a prayer for her she will come home 
     safely. So far she has. Deputy March was not so lucky. I 
     wonder how his kids must feel not having a dad any longer. 
     Could you please help catch the man that killed Deputy March. 
     I listen to the radio a lot and they said the bad man that 
     did this is in Mexico and he is not in jail. Could you please 
     get him back here so my mom will be safer when she goes to 
     work.

[[Page S14278]]

       Thank you.

  It is unfortunate that we live in a country where we cannot assure a 
youngster that the man who killed his mom's colleague won't come back 
and hurt her too. That is why we need to pass this resolution now. That 
is why we need the President to act.
  I ask my colleagues for their support.
  I also ask unanimous consent that an October 24, 2003 Resolution of 
the International Association of Chiefs of Police be printed in the 
Record.
  There being no objection, the resolution was ordered to be printed in 
the Record, as follows:

  [Resolution From the International Association of Chiefs of Police, 
                         Adopted Oct. 24, 2003]

                    Extradition of Criminal Suspects

                 (Submitted by the Executive Committee)

       Whereas, the law enforcement profession has a compelling 
     interest in ensuring that individuals suspected of committing 
     crimes are not able to evade justice by leaving the country 
     in which the crime was committed; and
       Whereas, in response to this problem, many nations have 
     established extradition treaties that allow for the return of 
     criminal fugitives to the country in which they are suspected 
     of committing crimes; and
       Whereas, extradition treaties are political agreements 
     between nations; and,
       Whereas, the International Association of Chiefs of Police 
     refrains from entering into political disputes between 
     nations unless an issue which clearly impacts the law 
     enforcement profession is involved; and
       Whereas, these treaties form the backbone of international 
     law enforcement efforts and have allowed for the successful 
     apprehension and conviction of many fugitives over the years, 
     and
       Whereas, the effectiveness of these treaties relies upon 
     the timely return of criminal suspects; and
       Whereas, the terms of some extradition treaties have proven 
     to be too restrictive and have significantly limited the 
     ability of law enforcement agencies to bring a criminal 
     suspect to trial and have, in effect, allowed for the 
     creation of safe havens for criminal fugitives; and
       Whereas, for example, the Extradition Treaty between the 
     United States of America and the United Mexican States allows 
     the United Mexican States to refuse to extradite criminal 
     suspects who face capital punishment for crimes committed 
     within the United States, and a recent decision of the 
     Mexican Supreme Court has unilaterally and mandatorily 
     extended that prohibition on life sentences, and
       Whereas, it is clear that extradition treaties and 
     agreements that do not allow for the timely return of 
     criminal suspects or that condition their return on the 
     domestic sentencing laws of the requested state are an issue 
     that clearly impacts the law enforcement profession and it is 
     appropriate for the International Association of Chiefs of 
     Police to express the concern of the law enforcement 
     community in this matter and work to resolve this situation; 
     Now, therefore be it
       Resolved, That the International Association of Chief of 
     Police calls on all nations to ensure that extradition 
     treaties serve only to guarantee that accused individuals are 
     provided with due process of law and not to provide criminal 
     suspects with a means of evading justice; and be it
       Further resolved, That the International Association of 
     Chiefs of Police calls on the governments of the United 
     States of America and the United Mexican States to 
     renegotiate the extradition treaty so that the possibility of 
     capital punishment or life imprisonment shall not interfere 
     with the timely and unconditional extradition of criminal 
     suspects.

                          ____________________