Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding D.C. No. CR-00-01242-JM-03.
The opinion of the court was delivered by: Graber, Circuit Judge
Argued and Submitted February 4, 2009 -- Pasadena, California.
Before: Harry Pregerson, Susan P. Graber, and Kim McLane Wardlaw, Circuit Judges.
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 violation of the doctrine of specialty, which prohibits a requesting 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 convicted 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 kidnapping 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 supposedly stole from Bailey.
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 location 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 shopping 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 Defendant "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 Defendant, as requested.
On October 2, 2001, Mexico's Supreme Court of Justice of the Nation interpreted Mexico's constitution to prohibit extradition 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, denying 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 prohibited sentence [under Mexico's ...