[00:00:01] Speaker 00:
Good morning, Your Honors.

[00:00:02] Speaker 00:
May it please the Court, Carolyn Wiggin on behalf of Mr. Martinez Santoyo, and I will attempt to reserve five minutes for rebuttal.

[00:00:10] Speaker 03:
Very well.

[00:00:11] Speaker 00:
Thank you.

[00:00:12] Speaker 00:
Your Honors, I'd like to start this morning by addressing the lapse of time provision.

[00:00:18] Speaker 00:
We all agree Article 7 of the United States-Mexico Extradition Treaty includes the language that extradition is forbidden

[00:00:29] Speaker 00:
if it is barred by the lapse of time in either the requestor or the requested country.

[00:00:35] Speaker 00:
In this case, the United States is the requested country.

[00:00:39] Speaker 00:
So the most well-known, famous, and fundamental of our nation's time bars to prosecution is the speedy trial clause of the Sixth Amendment.

[00:00:52] Speaker 00:
I think that just looking at the plain language of the treaty,

[00:00:57] Speaker 00:
The word barred by a time lapse covers the Sixth Amendment Speedy Trial Clause.

[00:01:03] Speaker 00:
This court's analysis on that could begin and end just with the plain language of the treaty itself.

[00:01:09] Speaker 04:
Can you walk us through the ... We want to get to the applicability of speedy trial in this context, but your argument that speedy trial rights have been violated here?

[00:01:24] Speaker 04:
I mean, we've got a situation where ...

[00:01:29] Speaker 04:
First of all, a question about when it begins to run and where the defendant leaves the country.

[00:01:37] Speaker 04:
My guess is that's not something that necessarily counts against the government in a speedy trial analysis.

[00:01:43] Speaker 04:
How does your client win in a speedy trial analysis on the merits?

[00:01:48] Speaker 00:
Well, the Speedy Trial Act time begins with either

[00:01:53] Speaker 00:
an arrest or an accusation.

[00:01:56] Speaker 00:
So in this case, Mexico's issuance of the formal arrest warrant is treated sort of the same as an indictment in the United States.

[00:02:04] Speaker 04:
Well, we've said that for purposes of the statute of limitations time bar.

[00:02:12] Speaker 04:
Why is that the best point at which to start the clock for speedy trial purposes?

[00:02:18] Speaker 00:
I think for statute of limitations, it actually starts with the offense conduct.

[00:02:25] Speaker 04:
And, you know, so that can... Well, I'm sorry, the Santa's case is one that it's involving when the statute begins to run, right?

[00:02:36] Speaker 04:
We don't have a case that says when, as we wouldn't, when the Speedy Trial Act should be considered to begin running in Mexico.

[00:02:44] Speaker 00:
Well, okay, Mexico does not have...

[00:02:48] Speaker 00:
an equivalent to the Sixth Amendment Speedy Trial Clause.

[00:02:51] Speaker 00:
We have lots of cases in the United States saying your Sixth Amendment Speedy Trial time begins with either arrest or formal accusation.

[00:03:02] Speaker 00:
And I mean, neither party talked about the Supreme Court's 2016

[00:03:09] Speaker 00:
decision in Betterman, but that kind of gives us a modern analysis of these times.

[00:03:15] Speaker 00:
They say statute of limitation covers you from offense conduct till accusation.

[00:03:21] Speaker 00:
Sixth Amendment covers you from accusation or arrest until conviction, and then after conviction, your Sixth Amendment right is over in the United States.

[00:03:34] Speaker 04:
So the clock starts in 2014.

[00:03:36] Speaker 00:
Correct.

[00:03:38] Speaker 04:
Okay, is the space, and do you believe that Mexico under the speedy trial clause, and one of the reasons I think it's worth going through this is it begins to get to some of the complications of mapping.

[00:03:53] Speaker 04:
American constitutional doctrine on Mexican criminal procedure so Start clock starts from 2014 Mexico's on the clock there even though Mr. Santoyo has left the jurisdiction Well, if he had remained in Mexico, then they wouldn't be dealing with the Sixth Amendment, so I

[00:04:19] Speaker 00:
He's left the jurisdiction, so the only way for them to get him back is the extradition treaty, and it's the language in the extradition treaty saying you've got to honor the time limits, not only of the requester country, but the requestor, the requested country, United States.

[00:04:36] Speaker 00:
So.

[00:04:36] Speaker 04:
Sure, so the California statute of limitations, I guess, so the equivalent would be the California statute of limitations for a similar offense would apply, but no one's raised it, so we're assuming it doesn't.

[00:04:48] Speaker 00:
Well, yeah, I mean, for murder, California and the federal government don't really have a statute of limitations.

[00:04:56] Speaker 04:
OK, so you think that Mexico's on the speedy trial clock from 2014 to now?

[00:05:01] Speaker 00:
I mean, if he had remained in Mexico, the speedy trial clock is irrelevant.

[00:05:10] Speaker 04:
Well, if he had remained in Mexico, I guess I'm trying to think of, let me know if you're aware of a case where if someone is, if this were a trial in the United States and someone were indicted and then leaves the country for a decade.

[00:05:32] Speaker 04:
I'm not sure that the Barker inquiry would count that against the government.

[00:05:37] Speaker 00:
There are many cases where that happens.

[00:05:41] Speaker 00:
Doggett would be the one that's the most, the Supreme Court case we talk about in the briefs, but there are plenty of lower court cases.

[00:05:48] Speaker 00:
where this is where the United States is seeking someone who is abroad.

[00:05:57] Speaker 00:
But if they file the indictment and then they do nothing to try to do extradition for several years, even though they know the person isn't in their home country, that counts against them under speedy trial time.

[00:06:10] Speaker 00:
So yes, in our own courts, we count this delay in extraditing against your speedy trial time.

[00:06:17] Speaker 00:
And if it's unreasonably long, then the Sixth Amendment can lead to a dismissal of the charges of prejudice.

[00:06:23] Speaker 00:
Okay.

[00:06:23] Speaker 04:
Now, that suggests the clock ends when?

[00:06:26] Speaker 04:
On the extradition request?

[00:06:30] Speaker 04:
Well... I mean, you've got two sovereigns who are not necessarily able to coordinate their interests in a speedy trial.

[00:06:39] Speaker 04:
So how does that work?

[00:06:41] Speaker 00:
Well, so you would have to look at why, I mean, if you agree that, and again, we're not saying there's an independent Sixth Amendment right in these extradition proceedings, but the clause within the US-Mexico one we're saying incorporates the Sixth Amendment.

[00:06:58] Speaker 04:
Right, your claim is that Mexico and the United States agreed that both sides would need to go through, that at least the United States would need to go through this speedy trial inquiry for any extradition.

[00:07:10] Speaker 00:
Right, so we know that the accusation is made in like January of 2014 is when the arrest warrant issues in Mexico.

[00:07:16] Speaker 00:
They know he's in California and so I think the extradition court then says was this an unreasonable delay to wait until basically 2021 to try to get him back to Mexico and you know then you go

[00:07:35] Speaker 00:
through the Barker versus Wingo factors, which is length of delay, reason for delay, when did the accused assert their rights, and

[00:07:49] Speaker 00:
Prejudice from delay.

[00:07:50] Speaker 04:
But I don't understand your briefs to speak to anything other than the length of the delay.

[00:07:54] Speaker 04:
I mean, you have about a paragraph on the merits here.

[00:07:57] Speaker 04:
Is that enough for us to work with?

[00:07:59] Speaker 00:
I think the district court here just basically said the Sixth Amendment doesn't apply.

[00:08:05] Speaker 00:
So at district court, there was no real analysis of this.

[00:08:09] Speaker 00:
And one solution could be to say the Sixth Amendment applies, but the district court didn't fully weigh these factors.

[00:08:16] Speaker 00:
So we're sending it back down for that.

[00:08:18] Speaker 00:
And we would accept that.

[00:08:19] Speaker 00:
resolution as perfectly fair.

[00:08:25] Speaker 00:
If there are no more questions about that aspect of the case, I will move on to probable cause.

[00:08:31] Speaker 00:
Again, Article 3 of the extradition treaty makes it clear that for extradition to occur, the government must produce enough evidence to justify committing a person for trial

[00:08:46] Speaker 00:
for the offense for which he is accused according to the laws of the request edge country here in the United States.

[00:08:54] Speaker 00:
So that means the government must produce evidence as to each element of the offense.

[00:09:00] Speaker 00:
We argue that here there's simply

[00:09:03] Speaker 00:
no evidence as to the unfair advantage.

[00:09:06] Speaker 00:
Mexican law spells out several different things that can constitute unfair advantage.

[00:09:14] Speaker 00:
There's simply no evidence in this case that meets that element.

[00:09:19] Speaker 00:
So we don't think they've met their probable cause standard here.

[00:09:24] Speaker 00:
And for that reason, extradition should not have been ordered.

[00:09:31] Speaker 00:
I can reserve my time, I suppose, or I can just briefly say, first I'll just be very brief on my final two issues.

[00:09:39] Speaker 00:
We believe that the forensic report showing the gunshot residue on Mr. Miranda's hands, that report was referenced in the extradition packet as part of Mexico's evidence.

[00:09:54] Speaker 00:
Our office obtained the actual report and translated it into English and sought to submit it in the hearing.

[00:10:01] Speaker 00:
We think that would have been explanatory evidence.

[00:10:04] Speaker 00:
It didn't contradict any of the government's evidence.

[00:10:08] Speaker 00:
We think it should have been admitted as part of the totality of circumstances that could support or fail to support probable cause.

[00:10:18] Speaker 00:
And then finally, as to our discovery request,

[00:10:24] Speaker 00:
Our position is that when the government is carrying out its duties in extradition proceedings, it has to comply with the due process clause.

[00:10:33] Speaker 00:
We know that Brady itself doesn't apply to extradition, but we think due process does, and that if the government had exculpatory evidence or the evidence we sought, it should have produced it.

[00:10:47] Speaker 01:
Thank you.

[00:10:48] Speaker 01:
Thank you.

[00:10:59] Speaker 02:
May it please the court, Elliot Wong on behalf of the United States.

[00:11:03] Speaker 02:
We've been using the phrase lapse of time in our extradition treaties for over 100 years and throughout dozens of different treaties.

[00:11:10] Speaker 02:
We've always understood that term to refer to the statute of limitations that applies to the case.

[00:11:15] Speaker 02:
And the courts who have considered whether that term should be more expansively interpreted to incorporate the Sixth Amendment's PD trial

[00:11:24] Speaker 02:
fairly uniformly have rejected that idea.

[00:11:27] Speaker 02:
And there are good reasons for this.

[00:11:29] Speaker 02:
As Judge Johnstone pointed out, the difficulties in mapping US constitutional doctrine onto foreign procedures is something that this Court is

[00:11:40] Speaker 02:
wary to do.

[00:11:41] Speaker 02:
This court in the Sains case has cautioned against looking into the procedures of a foreign criminal proceeding when we're talking about extradition and that's because, especially when we're talking about a civil law country like Mexico, their criminal procedures are remarkably different from ours and it's really hard for us to be able to parse without making significant errors

[00:12:07] Speaker 02:
exactly how those procedures work and in justifying the delay.

[00:12:10] Speaker 02:
The Barker test is really inapplicable to the situation and would be, as I think Judge Johnston is struggling with some of his questions, it's really hard to apply that because it requires looking into the reason for the delay and the prejudice to the fugitive.

[00:12:26] Speaker 04:
Don't we have to do that a little bit in cases like Santa's even in order to try to figure out I mean Instead we should look at the restatement some third source of law To understand for statute of limitations purposes how the time goes.

[00:12:43] Speaker 04:
I mean there are questions about tolling there they're equally or at least similarly complicated questions are there not if we just view laps of time as statute of limitations and

[00:12:53] Speaker 02:
I agree that there are some questions involved with the application of the statute of limitations, but I don't think that they are similarly complicated.

[00:13:00] Speaker 02:
So with the statute of limitations arguments, what we have is we normally look to authoritative interpretations of foreign law by that foreign government, whether that be the prosecutor or foreign court.

[00:13:11] Speaker 02:
And those questions, we usually defer to their interpretation of their own laws.

[00:13:16] Speaker 02:
Their familiarity with those laws, their normal applicability, is something that they are more versed on doing.

[00:13:22] Speaker 02:
And as a matter of comedy and reciprocity, this court has fairly uniformly held

[00:13:29] Speaker 02:
against looking too far into the foreign court's interpretation of its own laws.

[00:13:33] Speaker 04:
Would you agree that the arrest warrant here was similar to an accusation or indictment setting aside the speedy trial question?

[00:13:44] Speaker 02:
Correct.

[00:13:45] Speaker 02:
And that would be from the Sains case, Your Honor.

[00:13:46] Speaker 02:
Okay.

[00:13:47] Speaker 02:
So when we're talking about the plain language in the text of the provision,

[00:13:52] Speaker 02:
Just to respond to that, so one of the things that Appellant says in the reply brief on page 19 is that the 1978 version of the treaty switched from using the language of limitations to using lapse of time.

[00:14:05] Speaker 02:
And Appellant suggests that this is a significant change that was intended by the parties to change the meeting and therefore expand the definition of that provision such that it could cover U.S.

[00:14:17] Speaker 02:
constitutional provisions.

[00:14:18] Speaker 02:
And I think looking to the Martinez case in the Sixth Circuit, they did a really good job of walking through the textual arguments, the historical arguments, the ratification arguments in the context, and really what they said is that

[00:14:33] Speaker 02:
There was no change that was flagged as being substantive in the ratification process, and Judge White and her concurrence further stated that even though there was a switch in the English word from limitations to lapse of time, in the Spanish there was none, and both versions, the English and the Spanish, are both authoritative interpretations of the same treaty, such that the Spanish word prescripción, which is a civil law term that's generally applied to the statute of limitations, remained from the prior version to the 1978 version.

[00:15:03] Speaker 02:
And then further, as Judge Sutton pointed out in the majority opinion from the Martinez case, really the lapse of time phrase, although it doesn't necessarily preclude other

[00:15:15] Speaker 02:
delay based doctrines, it's best read to only encompass the statute of limitations, because that is the one doctrine that really holds to a fixed time limit.

[00:15:24] Speaker 02:
And really, as the Supreme Court said in Barker, the Sixth Amendment Speedy Trial Clause is a doctrine that is amorphous, vague, and really difficult to pin down exactly when a violation has occurred.

[00:15:37] Speaker 02:
And really, what that analysis entails for domestic cases would be even harder to apply to the extraterritorial context, because what that would require this court to do, and United States courts around generally, is to pass judgment on the diligence, delay, or bad faith

[00:15:57] Speaker 02:
of foreign prosecutors, of foreign investigators, of foreign courts, and then of foreign bureaucrats who are actually responsible for forwarding the extradition request.

[00:16:06] Speaker 04:
That ends up being, at least can be, kind of a two-way street if we think about, I'm not sure whether it's Doggett or these cases where it's the other way around.

[00:16:15] Speaker 04:
where the U.S.

[00:16:17] Speaker 04:
is facing speedy trial questions for its extradition request.

[00:16:24] Speaker 04:
Doesn't a court need to inquire to some extent what's going on in that other country that's occasioning the delay?

[00:16:30] Speaker 02:
No, Your Honor.

[00:16:32] Speaker 02:
So the only question before the Court would be the statute of limitations issue, and the broader question about whether an extradition is timely is a diplomatic consideration for the Secretary of State at the end of the day when deciding as a matter of diplomatic principles to actually do the extradition once everything has been properly certified.

[00:16:52] Speaker 02:
And I also point to the court's prior decisions in Cameron and Kraselberg, which did involve this court's rejection of the idea of doing a sub silencio insertion of US constitutional provisions into a different provision of an extradition treaty.

[00:17:08] Speaker 02:
Those cases, both involved in the Cameron case, was an argument that due process applied in a remedies and recourses provision.

[00:17:16] Speaker 02:
And further, the Kraselberg case involved not only due process, but also the constitutional speedy trial right.

[00:17:22] Speaker 02:
And in both cases, it was a significant expansion of that right, but such that it was tacitly done, and the court rejected that interpretation in both times.

[00:17:30] Speaker 02:
The drafting and ratification history similarly supports rejecting appellants' arguments in this case.

[00:17:38] Speaker 02:
There are numerous other extradition treaties that the United States has signed, roughly contemporaneous with the Mexico Treaty in 1978, all of which, not all of which, but many of which actually explicitly reference the lapse of time provision and tie that to the statute of limitations provision.

[00:17:57] Speaker 02:
And some of the cases that, or some of the situations that were pointed out in Martina's case, the treaties that we signed with Colombia, with Costa Rica, Argentina, and South Korea, around the timeframe of the US-Mexico treaty, those all explicitly tie those two rights together, which is to say, tying the lapse of time language with the speedy trial, or excuse me, with the statute of limitations, not including anything else related to the speedy trial act,

[00:18:24] Speaker 02:
um, or, or the constitutional provisions of the speedy trial, uh, clause.

[00:18:29] Speaker 02:
Um, and further, I just point out that the, this would, Appellant's argument leads to a slippery slope.

[00:18:34] Speaker 02:
Any delay-based provisions, the constitutional speedy trial right, if her arguments are accepted, then there's no reason to limit that to the constitutional Sixth Amendment right and not further incorporate other delay-based doctrines such as the speedy trial clause or common law doctrines of latches.

[00:18:58] Speaker 02:
And the reciprocation for that would be

[00:19:02] Speaker 02:
the incorporation of any other similar delay-based provisions under foreign law that would be applied reciprocally?

[00:19:11] Speaker 04:
Well, Mr. Wong, I guess as I suppose that adds a wrinkle to it.

[00:19:16] Speaker 04:
So would you concede that the California statute of limitations would be the operative lapse of time provision in the reciprocal provision in the treaty here?

[00:19:27] Speaker 02:
It could be looked to for a statute of limitations, your honor, but in this case, what the district court did is look at the federal statute of limitations for, I believe, a secondary murder.

[00:19:40] Speaker 04:
Well, yeah, I guess that's just it, because the treaty refers to the party, the country, but we're dealing here with two federal systems.

[00:19:51] Speaker 04:
familiar enough with Mexico to determine how much its criminal procedure differs among its states, but among our states, the practical problem you're introducing could potentially sweep in some state doctrines, or is it clear enough that we always look to the, here's another area where I don't know whether we use a categorical approach or not, but do we always look at the federal offenses?

[00:20:13] Speaker 04:
Is that the government's view of the treaty here to find the statute of limitations?

[00:20:18] Speaker 02:
No, Your Honor, the federal offenses are easy to analogize, but there are cases in which this Court has looked to comparable state law offenses as well.

[00:20:28] Speaker 04:
Okay, so once the door is open to comparable state law and we begin to look at unwritten doctrine, could that potentially then bring us into inquiries at the state level, which would be even more complicated?

[00:20:41] Speaker 04:
If we want to sweep in the Speedy Trial Act, I think this goes to your point, if we're sweeping in any lapse of time doctrine, does that really require us to begin looking at all sorts of other things, including California state doctrine or other things that would make this even more complicated?

[00:20:58] Speaker 02:
There's been no case law, to my knowledge, that has actually gone that far into the weeds on that issue.

[00:21:04] Speaker 02:
And for the most part, the statute of limitations for United States, from the United States side, has always been a fairly straightforward analysis.

[00:21:15] Speaker 02:
The courts have been, I think, well equipped to deal with that, since they do that in a normal case.

[00:21:22] Speaker 02:
Domestically, when we're talking about a United States criminal prosecution,

[00:21:26] Speaker 02:
So the analysis isn't that different.

[00:21:28] Speaker 02:
The problem turns on whether or not we're actually looking to the foreign criminal procedures, especially when we're talking about a civil law system, which is significantly different from ours.

[00:21:39] Speaker 01:
That's it.

[00:21:39] Speaker 01:
Just make sure I understand.

[00:21:41] Speaker 01:
So let's say somebody did some serious offense, but when it does have a statute of limitations, so not murder, something that

[00:21:48] Speaker 01:
kidnapping.

[00:21:49] Speaker 01:
Let's say it was 10-year statute of limitations in Mexico, but the equivalent would have a six-year statute of limitations here.

[00:21:58] Speaker 01:
Did I understand correctly?

[00:21:59] Speaker 01:
Obviously, you looked at the 10-year statute of limitations.

[00:22:03] Speaker 01:
Would you also look to our six-year statute of limitations, and you wouldn't allow the person to be extradited if it was like at seven or eight years, before the 10, but after the

[00:22:14] Speaker 02:
Possibly, Your Honor.

[00:22:15] Speaker 02:
And that's because some of the treaties only say, uh, lapse of time according to the laws of the requesting country.

[00:22:22] Speaker 02:
Some of the treaties require both.

[00:22:24] Speaker 01:
So that you have to have... This one says according to the laws of the requesting or requested party.

[00:22:28] Speaker 01:
Correct.

[00:22:29] Speaker 01:
But... it... it's... the statute... I guess I could understand where you would read that, since we are a requested party.

[00:22:39] Speaker 01:
But we're not trying to prosecute him for US kidnapping.

[00:22:43] Speaker 01:
He's trying to be prosecuted for Mexico kidnapping.

[00:22:47] Speaker 01:
And so it's weird to take the US statute of limitations that's applicable to the US crime that you're not trying to prosecute the person for and somehow apply it.

[00:22:54] Speaker 01:
But I guess you're saying that our cases have done that?

[00:22:56] Speaker 01:
Correct, Your Honor.

[00:22:57] Speaker 01:
That seems weird.

[00:23:00] Speaker 02:
Extradition is a strange beast, Your Honor.

[00:23:03] Speaker 02:
And then just briefly touching on the Brady argument, unless there's no further questions about the Sixth Amendment issue.

[00:23:09] Speaker 02:
So just briefly with the Brady and discovery question, this court's decision in Moreno, although done in the 1960s, is still good law.

[00:23:19] Speaker 02:
That court said specifically that the Brady rights do not apply in extradition proceedings, and there's good reason for that.

[00:23:26] Speaker 02:
Specifically, an extraditee maintains that they have a fair hearing without enjoining the full panoply of rights available to a criminal defendant because the character of the evidence submitted in an extradition proceeding is only akin to a preliminary hearing and not an actual criminal trial, such that the appellant's citations to the Santos case and the Crasham case

[00:23:52] Speaker 02:
are not any reason to disturb this court's decision, Marino.

[00:23:56] Speaker 04:
Why wouldn't that change?

[00:23:59] Speaker 04:
I mean, we're talking about ultimately due process, which does apply, maybe not in the same way, if the government did participate in the investigation and had evidence that would defeat probable cause.

[00:24:19] Speaker 02:
Um, so your honor, I mean, looking to the Sixth Circuit's case in Gemjanik, uh, that's exactly what happened in that case, which is a very weird situation, um, where the government in that case had evidence, exculpatory evidence in its possession that said- Right, and here it would have to be actually explanatory evidence, which would be even kind of maybe more exculpatory than Brady exculpatory.

[00:24:41] Speaker 02:
Yeah, so it's hard to come up with an example that would actually satisfy this.

[00:24:46] Speaker 02:
The Jim Janet case and even the Sixth Circuit recognized after the fact, that involved a very strange set of circumstances where somebody who was accused of being a fairly notorious Nazi guard was sought by the requesting country and the United States actually had information, exculpatory information, that the extraditee was not the fugitive who was actually being sought.

[00:25:08] Speaker 02:
So that unique situation, I think, was the impetus behind creating that rule in the Sixth Circuit.

[00:25:16] Speaker 02:
And since that case came out, there has never been a comparable situation across any other circuits that I'm aware of where we've seen that kind of strange circumstance where the government is actually in possession of exculpatory information

[00:25:30] Speaker 02:
that would basically obliterate probable cause and are hiding it from or not disclosing it to the fugitive.

[00:25:37] Speaker 04:
And we need not reach that here because the government has taken the position that it is not, right?

[00:25:42] Speaker 04:
You agree that the government has not participated in the investigation?

[00:25:45] Speaker 02:
Correct.

[00:25:46] Speaker 02:
This is not the case to rule on that particular factual circumstance.

[00:25:51] Speaker 02:
Unless the court has any further questions.

[00:25:54] Speaker 03:
All right.

[00:25:54] Speaker 03:
Thank you, counsel.

[00:25:56] Speaker 03:
We'll, to make it simple, we'll round up to five.

[00:26:04] Speaker 00:
Thank you, Your Honors.

[00:26:06] Speaker 00:
And I will try to be brief.

[00:26:07] Speaker 00:
I want to spend a little bit of time on the statute of limitations issue.

[00:26:12] Speaker 00:
It is sort of the lapse of time issue, which we say covers statutes of limitations and the Speedy Trial Clause.

[00:26:22] Speaker 00:
Now, the government says it would be too hard for our courts to and inappropriate to delve into Mexican law on these issues.

[00:26:32] Speaker 00:
This treaty, not every treaty, this treaty says look at time lapse laws of the requestor and the requested party.

[00:26:41] Speaker 00:
So we are under an obligation to look at Mexican, they don't have the speedy trial clause, but they do have statutes of limitations.

[00:26:53] Speaker 00:
They work a little differently than in the United States.

[00:26:55] Speaker 00:
So, for instance, in this case, I believe for this type of homicide, what they do is they take the low end and the high end of their statutory range and they say the middle of that is basically the statute of limitations.

[00:27:15] Speaker 00:
This wasn't controversial in this case, but our core, if we had raised it, we would have had to go through an analysis of like, is this really the Mexican statute of limitations?

[00:27:25] Speaker 00:
If the case had gone past that statute of limitations under Mexican law, we would say under the US extradition treaty, this person cannot be extradited, and we look at

[00:27:39] Speaker 00:
US statutes of limitations.

[00:27:42] Speaker 00:
So we're already saying in this treaty, we want federal magistrates to look at the foreign law and the domestic law.

[00:27:50] Speaker 00:
I don't think the statute of limitations laws is less complicated than speedy trial.

[00:27:55] Speaker 00:
I think it's more complicated.

[00:27:57] Speaker 00:
So this obligation was already written into this treaty.

[00:28:01] Speaker 00:
Now, the government says— I guess, Ms.

[00:28:04] Speaker 04:
Wiggin, why isn't that enough then?

[00:28:07] Speaker 04:
I get your point that there may be some equities involved in the long delay here, but it sounds like the parties agree that there are no statute of limitations issues on either side of the border here.

[00:28:20] Speaker 04:
This is a very serious crime.

[00:28:22] Speaker 00:
Well, there is a speedy trial issue.

[00:28:24] Speaker 00:
And I would say the plain language of the treaty says, and this is the English language version of the treaty that our president entered, our senate ratified.

[00:28:33] Speaker 00:
That's what this court should look to.

[00:28:35] Speaker 00:
The plain language says, lapse of time of either country.

[00:28:40] Speaker 00:
I think at the time it was written, the only published, the only federal case on point interpreting lapse of time in an extradition treaty was Milano's.

[00:28:51] Speaker 00:
That case went undisturbed from 1960 till 1993.

[00:28:54] Speaker 00:
The US-Mexico treaty is entered into in 1978.

[00:28:58] Speaker 00:
So that's the only interpretation that was out there when the treaty was entered into.

[00:29:05] Speaker 00:
And I think the plain language, if you look to that bit of legislative history, and also the fact that... What about, I mean, I see your point that figuring out the lapse of time that would count

[00:29:20] Speaker 01:
It sounds like it's not 10 years.

[00:29:24] Speaker 01:
You have to kind of calculate it.

[00:29:26] Speaker 01:
It sounds like, I don't take your point at that.

[00:29:28] Speaker 01:
But a speedy trial right includes lapse of time.

[00:29:31] Speaker 01:
Arguably, and maybe even say that's the most important factor, but it has other things that courts take into account.

[00:29:39] Speaker 01:
And so the treaty language says,

[00:29:43] Speaker 01:
barred by lapse of time it doesn't say other things right that could be barred by something else and it wouldn't count at least this language

[00:29:51] Speaker 01:
So what about the fact that it has these other factors?

[00:29:55] Speaker 01:
And then I think the government's point was that if you allow it to where, I think your argument is basically, if lapse of time is just one of the things you take into account, then it's covered by this treaty.

[00:30:06] Speaker 01:
I think that has to be your argument if you want to get a speedy trial right.

[00:30:09] Speaker 01:
So what about other things that would have pulled in other things, other federal rights that take into account lapse of time like latches, et cetera?

[00:30:18] Speaker 00:
Well, I think the only, in criminal cases in the United States, the only lapse of time rules I'm aware of are statute of limitations and Sixth Amendment speedy trial.

[00:30:34] Speaker 01:
So I don't, I think because those are- Where would lapse of time be something you would take into account in a malicious, I know you never went on malicious prosecution, but like, you know, you say, well, they waited until such and such because, you know, the government and they did it for some malicious purpose.

[00:30:52] Speaker 01:
And so, yes, it's not normally what you think of as even the main factor, but if your argument is that if lapse of time is a part of it, then it covers it, then it does seem like it would pull in

[00:31:04] Speaker 01:
Other things, perhaps.

[00:31:05] Speaker 00:
I don't think it would pull in other federal constitutional rights at trial.

[00:31:10] Speaker 00:
I mean, there's nothing about we have a right to a jury trial.

[00:31:14] Speaker 00:
Mexico doesn't have a right to a jury trial.

[00:31:16] Speaker 00:
There's nothing about lapse of time that would pull in the jury trial right or pull in the right against self-incrimination.

[00:31:23] Speaker 00:
Lapse of time, I think, is pretty clear language that it's about time.

[00:31:27] Speaker 00:
I don't think the slippery slope argument works.

[00:31:29] Speaker 01:
Then that takes us back to the fact that speedy trial ride is not just about time.

[00:31:34] Speaker 01:
You're saying it pulls that in, too, though.

[00:31:36] Speaker 00:
I think it's principally about time.

[00:31:39] Speaker 00:
You ask about delay, reason for delay, assertion about delay, prejudice from delay.

[00:31:46] Speaker 00:
Statute of limitations is about time, but you also look at, well, if the person was in

[00:31:53] Speaker 00:
fleeing from justice in fugitive status, all that time is taken away from your statute of limitations clock.

[00:32:00] Speaker 00:
There can be other things, like if the victim is a child, sometimes that affects your statute of limitations time.

[00:32:08] Speaker 00:
So the statute of limitations, just like the Speedy Trial Clause, asks the court

[00:32:14] Speaker 00:
to look at time and sometimes weigh other factors.

[00:32:17] Speaker 00:
So I don't think it's more hard.

[00:32:19] Speaker 04:
Ms.

[00:32:19] Speaker 04:
Wiggin, I guess what's your position on when the defendant asserted his right for purposes of the Barker analysis?

[00:32:26] Speaker 00:
In this litigation, he didn't know about the arrest warrant until he was arrested in 2022.

[00:32:38] Speaker 00:
So that's when he's asserted his right.

[00:32:44] Speaker 00:
Speedy Trial Right.

[00:32:46] Speaker 00:
And that's just one factor.

[00:32:49] Speaker 03:
And then- We're way over?

[00:32:52] Speaker 00:
Yeah.

[00:32:53] Speaker 00:
I will- You want to wrap up?

[00:32:54] Speaker 00:
Thank you very much.

[00:32:57] Speaker 00:
I will just say one thing in parting, which is that I think this court could make clear that despite the fact that Moreno says Brady doesn't apply in extradition hearings, which is absolutely true,

[00:33:10] Speaker 00:
it could say when you do, when the government does possess evidence that obliterates probable cause, then under the due process clause, it should turn it over to the extradite, the person named in the extradition petition.

[00:33:27] Speaker 03:
Thank you.

[00:33:27] Speaker 03:
All right, thank you very much, Council.

[00:33:28] Speaker 03:
Thank you.

[00:33:28] Speaker 03:
Thank you both for your briefing and argument.

[00:33:30] Speaker 03:
This matter is submitted.

[00:33:32] Speaker 03:
The panel is adjourned, but we do have some folks who are going to talk to the law students, and then we'll be back out in a little bit.

[00:33:41] Speaker 04:
rise.