United States v. Iribe ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50432
Plaintiff-Appellee,
v.  D.C. No.
CR-00-01242-JM-03
HUMBERTO IRIBE,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
February 4, 2009—Pasadena, California
Filed May 6, 2009
Before: Harry Pregerson, Susan P. Graber, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Graber
5299
UNITED STATES v. IRIBE 5301
COUNSEL
Frederick M. Carroll and Marc X. Carlos, Bardsley & Carlos,
LLP, San Diego, California, for the defendant-appellant.
5302 UNITED STATES v. IRIBE
Jason A. Forge, Assistant United States Attorney, Appellate
Section, Criminal Division, San Diego, California, for the
plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Humberto Iribe entered a conditional guilty plea,
during trial, to conspiracy to kidnap and attempt to kidnap
Richard Post, in violation of 18 U.S.C. §§ 371 and 1201(d).
He reserved the right to appeal with respect to an alleged vio-
lation of the doctrine of specialty, which prohibits a request-
ing nation from prosecuting an extradited individual for any
offense other than the one for which the surrendering state
agreed to extradite, as well as with respect to the lawfulness
of his convictions for both conspiracy to kidnap and attempt
to kidnap the same person, whom he actually did kidnap and
kill. We hold that there was no violation of the doctrine of
specialty, because Mexico agreed to Defendant’s extradition
for these two crimes, and that the district court properly con-
victed Defendant of both conspiracy and attempt to kidnap
Post. Therefore, we affirm Defendant’s convictions.
FACTUAL AND PROCEDURAL HISTORY
In August 1998, Defendant met with Kimberly Bailey and
John Krueger in San Diego, California, to discuss the kidnap-
ping of Richard Post. Defendant and the others agreed to the
following: Bailey would trick Post into accompanying her to
Mexico, where she would take him to a designated location.
Defendant would arrange for Post to be abducted and taken to
another location in Tijuana, Mexico. Defendant and others
acting at his direction would threaten, beat, and torture Post
to force him to reveal the location of monies that Post suppos-
edly stole from Bailey.
UNITED STATES v. IRIBE 5303
Later that month, Krueger notified Defendant by phone that
Bailey and Post would be traveling to Tijuana. Krueger and
Defendant arranged for Bailey to bring Post to a specific loca-
tion in Tijuana.
On August 20, 1998, Bailey kidnapped Post by luring and
transporting him from San Diego to Tijuana. Two men acting
at Defendant’s direction abducted Post from a Tijuana shop-
ping center as Defendant and Bailey watched from a distance.
The two men, followed by Defendant and Bailey, took Post
to a Tijuana residence where he was held.
Between August 20 and August 25, Defendant, Bailey, and
others acting at Defendant’s direction repeatedly threatened,
beat, and seriously injured Post at the Tijuana residence. On
August 25, 1998, Defendant and others killed Post in Mexico.
On April 13, 2000, Defendant was charged in a three-count
indictment with conspiracy to murder, kidnap, and maim a
person in a foreign country, in violation of 18 U.S.C. § 956.
Two weeks later, a first superseding indictment was returned,
which added a count charging Defendant with intimidating a
witness.
On October 5, 2000, the United States asked Mexican
authorities to arrest and detain Defendant. On April 22, 2001,
judicial authorities in Mexico ordered Defendant to be
detained pending his extradition to the United States. On June
18, 2001, the United States formally requested that Mexico
extradite Defendant to the United States. On July 21, 2001, a
judge in Mexico City granted the request to extradite Defen-
dant “for the crimes of conspiracy to kill and kidnap another
person and other related crimes.” On August 8, 2001, the
Mexican Foreign Ministry granted the extradition of Defen-
dant, as requested.
On October 2, 2001, Mexico’s Supreme Court of Justice of
the Nation interpreted Mexico’s constitution to prohibit extra-
5304 UNITED STATES v. IRIBE
dition for offenses that carry potential sentences of up to life
imprisonment. In light of that judicial decision, on October
31, 2001, the judge in Mexico City issued a new order, deny-
ing Defendant’s extradition as to the crimes of conspiracy to
kill and kidnap a person in a foreign country “insofar as the
sentence that could be imposed on the person sought, if extra-
dited, is life imprisonment, which is considered to be a pro-
hibited sentence [under Mexico’s constitution].” The judge
then granted Defendant’s extradition as to the crime of con-
spiracy to maim but denied it as to the crime of intimidation
of a witness.
On November 19, 2002, Mexico’s Ministry of Foreign
Affairs extradited Defendant to the United States to face the
charge of conspiracy to maim a person in a foreign country.
Defendant was physically removed from Mexico to the
United States on July 3, 2003. Four days later, he was
arraigned on the first superseding indictment.
On February 11, 2005, a federal grand jury returned a sec-
ond superseding indictment, charging Defendant with con-
spiracy to kidnap and attempted kidnapping, in violation of 18
U.S.C. §§ 371 and 1201(d). The government of Mexico deliv-
ered a Diplomatic Note to the United States, dated December
8, 2005, specifying that Mexico “[d]id not object” to “reclas-
sification” of the crimes involving Post.
Defendant moved to dismiss the second superseding indict-
ment, claiming that it violated the doctrine of specialty. The
district court denied the motion.
Trial commenced and, during a break in the testimony by
Post’s son, Defendant pleaded guilty to the second supersed-
ing indictment. In a written plea agreement, he reserved the
right to appeal two adverse rulings of the district court: (1)
denial of Defendant’s motion to dismiss the second supersed-
ing indictment for an alleged violation of the specialty doc-
trine; and (2) denial of Defendant’s motion to dismiss Count
UNITED STATES v. IRIBE 5305
2 of the second superseding indictment. The district court sen-
tenced Defendant to consecutive sentences, totaling 300
months in custody, to be followed by three years of super-
vised release. Defendant timely appeals.
DISCUSSION
A. The Doctrine of Specialty
“The doctrine of specialty prohibits the requesting nation
from prosecuting the extradited individual for any offense
other than that for which the surrendering state agreed to
extradite.” United States v. Van Cauwenberghe, 827 F.2d 424,
428 (9th Cir. 1987) (alteration and internal quotation marks
omitted); see also United States v. Andonian, 29 F.3d 1432,
1434-35 (9th Cir. 1994). Defendant argues that the district
court erred when it accepted a Diplomatic Note, on which the
court relied to find that the Mexican government agreed to
Defendant’s prosecution under the second superseding indict-
ment. Defendant further asserts that the Mexican government
denied his extradition “on all other causes” except the crime
of conspiracy to maim a person in a foreign country.
1. The Diplomatic Note was properly authenticated.
Defendant first argues that the Diplomatic Note was not
properly authenticated. We disagree.1
[1] The district court properly relied on the Diplomatic
Note because it was authenticated according to Federal Rule
of Evidence 901, which provides that documents may be
authenticated by extrinsic evidence. For example, either the
1
“We review evidentiary rulings for abuse of discretion.” United States
v. Hollis, 490 F.3d 1149, 1152 (9th Cir. 2007), cert. denied, 128 S. Ct.
1120 (2008). In making that determination, we consider whether the dis-
trict court’s decision rested on relevant factors and whether there was a
clear error of judgment. Id.5306 UNITED STATES v. IRIBE
testimony of a witness with knowledge, or “[e]vidence that a
writing authorized by law to be recorded or filed and in fact
recorded or filed in a public office,” demonstrates the authen-
ticity of a document. Fed. R. Evid. 901(b)(1), (7). Proponents
need make only a “prima facie showing of authenticity.”
United States v. Chu Kong Yin, 935 F.2d 990, 996 (9th Cir.
1991) (internal quotation marks omitted).
[2] Here, the authenticity of the Diplomatic Note is estab-
lished by the declaration of Linda Jacobson, Assistant Legal
Advisor for Law Enforcement and Intelligence in the Office
of the Legal Advisor for the United States Department of
State:
The Secretariat of Foreign Relations of Mexico
transmitted Diplomatic Note No. 46341, dated
December 8, 2005, to the U.S. Embassy in Mexico
City. In accordance with common international prac-
tice, Diplomatic Note No. 46341 is initialed, but not
signed by a Mexican government official. The
Department of State considers Diplomatic Note No.
46341 to be an official communication of the Gov-
ernment of Mexico.
The Jacobson declaration, made under penalty of perjury and
based on personal knowledge and on information obtained in
the performance of official duties, suffices to establish a
prima facie case of the authenticity of the Diplomatic Note.
No contrary evidence appears in the record. Accordingly, the
district court did not err in admitting the Diplomatic Note in
evidence.
2. Mexico did not object to the second superseding
indictment.
Defendant also argues that Mexico did not agree to his
prosecution for the crimes of conviction. Again, we disagree.2
2
We review de novo a district court’s determination that a superseding
indictment did not violate the doctrine of specialty. Andonian, 29 F.3d at
1434.
UNITED STATES v. IRIBE 5307
[3] A criminal defendant is protected under an extradition
treaty “only to the extent that the surrendering country wish-
es.” United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.
1986) (per curiam). An extradition treaty “does not purport to
limit the discretion of the two sovereigns to surrender fugi-
tives for reasons of comity, prudence, or even as a whim.” Id.“The Supreme Court has explicitly rejected the contention
that a treaty of extradition creates a right not to be taken from
the asylum country except in accordance with the provisions
of the treaty.” Id. (citing Ker v. Illinois, 119 U.S. 436, 441-42
(1886)).
Initially, a judge in Mexico City granted in full the United
States’ request to extradite Defendant for the crimes of con-
spiracy and kidnapping. Three months later, Mexico’s
Supreme Court of Justice of the Nation prohibited extraditions
for offenses that carry potential sentences of up to life impris-
onment. Because of that intervening decision, the lower court
judge limited his earlier grant of extradition, but only “insofar
as the sentence that could be imposed on the person sought,
if extradited, is life imprisonment, which is considered to be
a prohibited sentence [under Mexico’s constitution].”
(Emphasis added.) The judge in Mexico City also granted
Defendant’s extradition as to the crime of conspiracy to maim
a person in a foreign country.
[4] By originally granting the United States’ request for
extradition in full and then revising it only to protect Defen-
dant against imposition of a life sentence, the judge in Mexico
City clearly implied that he would have granted Defendant’s
extradition as to kidnapping charges for which a life sentence
could not be imposed. The second superseding indictment did
not carry the potential for a life sentence. Rather, it decreased
Defendant’s total sentencing exposure to 25 years (under 18
U.S.C. §§ 371, 1201(d)), from 35 years (under 18 U.S.C.
§ 956(a)(2)(B)).
[5] Further, the second superseding indictment was based
on the same facts that underlie Defendant’s original extradi-
5308 UNITED STATES v. IRIBE
tion. And, perhaps most importantly, the Mexican government
agreed to the prosecution under the second superseding indict-
ment. As the Mexican government stated in the Diplomatic
Note, “the Foreign Ministry does not object to the reclassifi-
cation of the crime pursuant to Article 17.2, paragraphs a) and
b) of the Extradition Treaty between the United Mexican
States and the United States of America.”
Defendant asserts that Mexico was silent with respect to the
second superseding indictment and that we cannot read into
its silence that country’s acquiescence. He interprets the Dip-
lomatic Note’s phrasing, “the Foreign Ministry does not
object to the reclassification of the crime” in the new indict-
ment, to mean that “the Foreign Ministry takes no position.”
That reading cannot survive contextual scrutiny. When our
government inquires whether a foreign government objects to
a prosecution, and the foreign government replies explicitly,
in writing, that it “does not object,” the foreign government
has agreed that the United States may proceed.
[6] Because the Mexican government approved the extradi-
tion of Defendant insofar as he was charged with crimes
related to the Post events that did not carry a life sentence,
and because the Mexican government chose formally not to
object to the prosecution of Defendant under the second
superseding indictment, there was no violation of the doctrine
of specialty.
B. Propriety of Convictions of Conspiracy and Attempt to
Kidnap
Defendant argues that he cannot be convicted of both con-
spiracy to kidnap and attempt to kidnap. His argument,
although unclear, seems to have two components. First, he
argues that, by charging him with conspiracy to kidnap Post,
the government necessarily has alleged that the crime of kid-
napping Post was completed, rather than inchoate. Second, he
argues that he cannot be convicted of the lesser included
UNITED STATES v. IRIBE 5309
offense of attempted kidnapping if he actually committed the
greater offense of a completed kidnapping. Defendant is mis-
taken on both theories.
Conspiracy to commit a crime is not equivalent to the com-
pletion of that crime. “By definition, conspiracy and attempt
are inchoate crimes that do not require completion of the
criminal objective.” United States v. Macias-Valencia, 510
F.3d 1012, 1014 (9th Cir. 2007), cert. denied, 128 S. Ct. 2100(2008). The crime of conspiracy comprises three elements:
“(1) an agreement to engage in criminal activity, (2) one or
more overt acts taken to implement the agreement, and (3) the
requisite intent to commit the substantive crime.” United
States v. Sullivan, 522 F.3d 967, 976 (9th Cir. 2008) (per
curiam) (internal quotation marks omitted). The crime does
not require completion of the intended underlying offense. An
attempt to commit a crime, on the other hand, comprises two
elements: “(1) an intent to engage in criminal conduct, [and]
(2) an overt act constituting a substantial step toward the com-
mission of the crime.” United States v. Morales-Perez, 467
F.3d 1219, 1222 (9th Cir. 2006) (internal quotation marks
omitted). Just like conspiracy, an attempt to commit a crime
does not require completion of the crime.
[7] Each of those crimes contains an element that the other
does not: Conspiracy does not require a “substantial step,”
while attempt does not require an “agreement.” See Blockbur-
ger v. United States, 284 U.S. 299, 304 (1932) (“A single act
may be an offense against two statutes; and if each statute
requires proof of an additional fact which the other does not,
an acquittal or conviction under either statute does not exempt
the defendant from prosecution and punishment under the
other.” (internal quotation marks omitted)). Accordingly, it is
constitutionally permissible to charge and convict a defendant
of both conspiring to commit a crime and attempting to com-
mit the same crime. See, e.g., Macias-Valencia, 510 F.3d at
1013 (charging the defendant with conspiracy to possess with
5310 UNITED STATES v. IRIBE
intent to distribute a controlled substance and attempt to pos-
sess with intent to distribute).
[8] Here, Defendant conspired to commit an actual kidnap-
ping. He also committed a substantial step toward kidnapping.
Thus, he was properly convicted of both conspiring to kidnap
and attempting to kidnap.
[9] The fact that the acts he committed could have sup-
ported a conviction for the greater crime of a completed kid-
napping does not entitle Defendant to an acquittal on either
the conspiracy or the attempt conviction. Rule 31 of the Fed-
eral Rules of Criminal Procedure sets forth that “[a] defendant
may be found guilty of . . . (1) an offense necessarily included
in the offense charged; (2) an attempt to commit the offense
charged; or (3) an attempt to commit an offense necessarily
included in the offense charged, if the attempt is an offense
in its own right.” Fed. R. Crim. P. 31(c). This “rule codified
pre-existing law.” Keeble v. United States, 412 U.S. 205, 208
n.6 (1973). Indeed, if Defendant’s contention, that one cannot
be convicted of a lesser included offense if he actually com-
mitted the greater offense, were true, then most plea agree-
ments would be unenforceable. Defendant has pointed to no
constitutional or statutory provision that would yield that
result.
AFFIRMED.