      Case: 14-50921          Document: 00512774126              Page: 1   Date Filed: 09/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit

                                            No. 14-50921                                 FILED
                                                                                 September 18, 2014
                                                                                    Lyle W. Cayce
                                                                                         Clerk
JUANITA ERNESTINA SANCHEZ QUINTANILLA,

                                                          Petitioner - Appellant
v.

UNITED STATES OF AMERICA,

                                                          Respondent - Appellee

------------------------------------------------------------------------

UNITED STATES OF AMERICA,

                                                          Plaintiff – Appellee
v.

JUANITA ERNESTINA SANCHEZ QUINTANILLA,

                                                          Defendant - Appellant



                     Appeals from the United States District Court
                           for the Western District of Texas
                                USDC No. 5:14-CV-611


Before PRADO, OWEN, and GRAVES, Circuit Judges.
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                                      No. 14-50921
PER CURIAM:*
       Pursuant to 18 U.S.C. 3184 and the extradition treaty between the
United States and Mexico, a magistrate judge issued two orders certifying that
Petitioner-Appellant Juanita Sanchez is eligible for extradition to be
prosecuted on charges of kidnapping, “organized crime” and “criminal
association.” Sanchez filed a petition for habeas corpus pursuant to 28 U.S.C.
§ 2241 challenging that certification, 1 which the district court denied on
August 25, 2014. The district court also denied Sanchez’s motion for a stay of
extradition. Sanchez has appealed the denial of her habeas corpus petition to
this court. She now moves for a stay of extradition pending resolution of that
appeal. We DENY the motion for a stay.
       In determining whether to grant a stay, we consider four factors: “(1)
whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest
lies.” Nken v. Holder, 556 U.S. 418, 426 (2009). “The first two factors of the
traditional standard are the most critical.” Id. at 434. More than a mere
possibility of success on the merits is required. Id.
       Although we assume that extradition while an appeal of the denial of
habeas corpus is pending would constitute irreparable harm, a stay is not
warranted because Sanchez has not demonstrated a likelihood of success on
the merits of her appeal. See Demjanjuk v. Meese, 784 F.2d 1114, 1118 (D.C.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 A petition for habeas corpus is the proper method of seeking review of an order
certifying extradition. See Balzan v. United States, 702 F.3d 220, 223 n.3 (5th Cir. 2012).
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Cir. 1986) (finding that “imminent extradition . . . may qualify as a threat of
irreparable harm” but denying stay because petition “fails to demonstrate a
likelihood of success on the merits”). “Habeas corpus review of a magistrate’s
certification order is quite narrow.” Balzan v. United States, 702 F.3d 220, 223
(5th Cir. 2012) (quotation omitted). Review is limited to: (1) whether the
magistrate had jurisdiction; (2) whether the offense charged is covered by the
treaty; and (3) whether there was “any evidence” warranting the magistrate’s
finding of probable cause that the accused is guilty of the charged offense. See
id.; see also Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Garcia-Guillern v.
United States, 450 F.2d 1189, 1191-92 (5th Cir. 1971).
      Sanchez argues that she is likely to succeed on the merits because the
charged offenses fail the “dual criminality” requirement of the treaty. Article
2 of the treaty makes an offense extraditable if it could be punished under the
laws of both countries with over a year of imprisonment. Treaty of Extradition,
U.S.-Mex., art. 2, May 4, 1978, 31 U.S.T. 5059 (hereinafter “Treaty of
Extradition”); see also Wright v. Henkel, 190 U.S. 40, 58 (1903) (noting that the
“general principle of international law” is that the charged offense in an
extradition case “must be considered a crime by both parties”). The dual
criminality requirement “does not require that the name by which the crime is
described in the two countries shall be the same; nor that the scope of the
liability shall be coextensive, or, in other respects, the same in the two
countries.   It is enough if the particular act charged is criminal in both
jurisdictions.” Collins v. Loisel, 259 U.S. 309, 312 (1922). To succeed on this
argument, Sanchez must establish that the charged conduct of planning and
carrying out kidnappings with at least two other persons would not establish
crimes of kidnapping or conspiracy under state or federal law. See id.
      The treaty specifically lists kidnapping, child stealing, abduction and
false imprisonment as extraditable offenses. Treaty of Extradition, Appendix,
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                                  No. 14-50921
31 U.S.T. 5059. Sanchez raises no challenge to the district court’s thorough
comparison of the factual bases of the Mexican charges with federal and Texas
kidnapping statutes, nor to its conclusion that there are “obvious similarities”
between federal and Texas state criminal statutes forbidding kidnapping and
aggravated kidnapping, see 18 U.S.C. § 1201 (prohibiting kidnapping for
ransom, including conspiracy to commit kidnapping, and providing for up to
ten years of imprisonment); Tex. Penal Code § 20.03 (prohibiting abduction of
another person); Tex. Penal Code § 20.04 (prohibiting kidnapping, including,
inter alia, kidnapping for ransom), and the Mexican criminal kidnapping
statutes under which Sanchez is charged. Instead, Sanchez points to some
differences between the Mexican “organized crime” and “criminal association”
statutes she is charged under, and United States and Texas statutes regarding
conspiracy. For example, it is not clear that the Mexican “organized crime”
and “criminal association” statutes require an overt act, which would be
required under federal law or Texas law. However, whether or not the Mexican
statutes at issue generally require an overt act, it is likely enough for purposes
of extradition that one has been charged—here, at the very least, the district
court found that Sanchez is alleged to have provided safe houses for the
kidnappings—sufficient to constitute a crime under United States and Texas
law. See Collins, 259 U.S. at 312 (“It is enough if the particular act charged is
criminal in both jurisdictions.” (emphasis added)). Thus, Sanchez has not
established that she is likely to succeed on her argument that the charged
conduct is not considered a crime by both Mexico and the United States.
      Next, Sanchez argues that she is likely to succeed on the merits because
there is insufficient evidence of probable cause. Certification of eligibility for
extradition requires a finding of probable cause that the accused committed
the charged offense. See Balzan, 702 F.3d at 223; Garcia-Guillern, 450 F.2d at
1192; Fernandez, 268 U.S. at 312. Probable cause is “the existence of a
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                                No. 14-50921
reasonable ground to believe the accused guilty of the crime.” Garcia-Guillern,
450 F.2d at 1192. “The function on habeas corpus is to determine whether
there is any competent evidence tending to show probable cause. The weight
and sufficiency of that evidence is for the determination of the committing
court.” Id.; see Balzan, 702 F.3d at 223. Here, both the magistrate judge and
the district court carefully and thoroughly reviewed the evidence supporting
probable cause, which included statements from the kidnapping victims and
statements from Sanchez’s alleged accomplices, who implicated Sanchez in
helping to plan and carry out specific kidnapping offenses. It is of no moment
that the evidence was documentary rather than live testimony. See 18 U.S.C.
§ 3190; Escobedo v. United States, 623 F.2d 1098, 1103-04 (5th Cir. 1980).
Given this evidence, Sanchez has not established that she is likely to succeed
on her argument that there was no evidence supporting the finding of probable
cause.
      Because we conclude that Sanchez has not met her burden to establish
a strong likelihood of success on the merits, the motion for a stay pending
resolution of the appeal is DENIED.




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