                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 02 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


VICTOR ERNEST CHILDS,                             No. 12-55795

              Petitioner - Appellant,             D.C. No. 3:11-cv-02690-W-NLS

  v.
                                                  MEMORANDUM*
STEVEN C. STAFFORD, United States
Marshal for the Southern District of
California,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                 Thomas J. Whelan, Senior District Judge, Presiding

                         Argued and Submitted July 9, 2013
                               Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       Victor Ernest Childs (Childs) appeals the district court’s denial of his

petition for a writ of habeas corpus challenging his pending extradition on a

Mexican arrest warrant. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     The magistrate judge’s finding of probable cause was supported by

sufficient evidence in the record to sustain the charge as alleged in the extradition

request. The magistrate judge relied on witnesses’ statements, and reliance on the

statements was permissible. See Manta v. Chertoff, 518 F.3d 1134, 1146 (9th Cir.

2008) (recognizing that unless the relevant treaty provides otherwise, the usual

rules of evidence do not apply to extradition proceedings). The magistrate judge

also considered a ballistics report confirming that the firearm found in Childs’

possession was the same weapon that fired the bullets retrieved from his wife’s

head. Even without Childs’ statement, the record provides sufficient competent

evidence to support a finding of probable cause that Childs committed aggravated

homicide as charged. See Sainez v. Venables, 588 F.3d 713, 717 (9th Cir. 2009)

(upholding a magistrate judge’s probable cause finding).



       2.    The district court correctly determined that its review of the

magistrate judge’s probable cause determination was limited to consideration of

whether: 1) the magistrate judge had jurisdiction over the proceeding and over

Childs; 2) the operative treaty was in effect and the alleged offense was within the

terms of the treaty; and 3) there was competent evidence supporting the magistrate

judge’s probable cause determination. See Manta, 518 F.3d at 1140. Childs


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contends that his extradition would violate due process because the American law

enforcement officials who interrogated him did so in violation of Miranda v.

Arizona, 384 U.S. 436 (1966). Childs’ claim fails because his statements to law

enforcement officials related solely to a foreign prosecution, and “concern with

foreign prosecution is beyond the scope of the [Fifth Amendment’s] Self-

Incrimination Clause.” United States v. Balsys, 524 U.S. 666, 669 (1998).

Therefore, Childs’ due process rights would not be violated by his extradition to

Mexico. See Mickey v. Ayers, 606 F.3d 1223, 1234 (9th Cir. 2010) (rejecting

extraditee’s due process claim predicated on incriminating statements).

      AFFIRMED.




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