ALD-113                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-4347
                                     ___________

                              MICHAEL RAY AQUINO,
                                                 Appellant

                                           v.

             JAMES T. PLOUSIS, U.S. Marshal, District of New Jersey;
            OSCAR AVILES, Director, Hudson County Correctional Center
                   ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 10-cv-01214)
                     District Judge: Honorable Stanley R. Chesler
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   February 10, 2011

             Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges


                               (filed: February 22, 2011 )
                                        _________

                                       OPINION
                                       _________

PER CURIAM

      The Government, acting on behalf of the Republic of the Philippines

(“Philippines”), applied to extradite Michael Ray Aquino to the Philippines because of
his alleged involvement in a double murder. Aquino, represented by appointed counsel,

challenged the application before a Magistrate Judge. After allowing limited discovery

and holding a hearing, the Magistrate Judge granted the Government’s application.

       Aquino challenged the Magistrate Judge’s decision by filing a petition pursuant to

28 U.S.C. § 2241 in the District Court. Still represented by appointed counsel, he argued

that the Government had failed to present competent evidence to demonstrate probable

cause to believe that he is guilty of conspiracy to commit a double murder. He also

claimed that the Government violated Brady v. Maryland, 373 U.S. 83 (1963), when it

refused to produce purportedly exculpatory evidence at his hearing. The Government

opposed the petition, which the District Court denied. The District Court held that there

was not only competent, but also ample, evidence to support the Magistrate Judge’s

finding of probable cause.

       Aquino, now pro se, appeals. In his brief in response to our notice of possible

summary action, he continues to argue that the evidence is insufficient to establish

probable cause. He also argues that the District Court erred by failing to consider

important DNA evidence.

       We have jurisdiction pursuant to 28 U.S.C. '' 1291 and 2253. We focus our

review on the issue of probable cause; that is, whether the Government offered evidence

to “support a reasonable belief that [the defendant] was guilty of the crime charged.”

Sidali v. INS, 107 F.3d 191, 199 (3d Cir. 1997) (citation omitted). In other words, the

question is whether the evidence presented was such “to cause a person of ordinary
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prudence and caution to conscientiously entertain a reasonable belief of the accused’s

guilt.” Id. (citation omitted). The standard is the same as for a federal preliminary

hearing; that is, a magistrate judge must “determine whether there is competent evidence

to justify holding the accused to await trial, . . . not . . . whether the evidence is sufficient

to justify a conviction.” Id. (citation omitted). Where, as here, a magistrate judge has

found probable cause, we must uphold the finding “if there is any competent evidence in

the record to support it.” Id.

         Upon review of the record, we conclude that competent evidence supports the

probable cause finding in this case. Accordingly, and because no substantial issue is

presented on appeal, we will summarily affirm the District Court’s judgment. See L.A.R.

27.4; I.O.P. 10.6.

         As the parties are familiar with the facts (which are not in dispute), we will not

repeat the Magistrate Judge’s thorough recounting of them. However, much like the

District Court did, we will highlight the salient facts that support the finding of probable

cause.

         Aquino, at the time of the alleged crimes, was Chief of the Operations Division of

a Presidential Anti-Organized Crime Task Force (“PAOCTF”), which had been formed

by Joseph Estrada, then president of the Philippines. Aquino gave the order to begin a

discreet investigation of one of the victims, Salvador Bubby Dacer, who had made

comments against Estrada. When the first investigator assigned to the project

encountered obstacles to sneaking into Dacer’s hotel room to surreptitiously search it and
                                                3
obtain documents, Aquino gave him an order to burn or bomb the room. Aquino later

transferred the Dacer assignment to someone else, whose first questions to the first

investigator included an inquiry about what type of car Dacer had. Dacer and his driver,

Emmanuel Corbito, the other victim, were abducted when Dacer’s car was surrounded by

armed gunmen while it was stopped at a red light.

       On the day that the victims were abducted, Aquino notified the first investigator

and sent him to meet the second investigator to interrogate Dacer, who was then being

held blindfolded and guarded in a van. At the conclusion of the interrogation, Aquino

instructed the first investigator to return to base after securing all documents for him.

The second investigator told the first that he would take care of things at the scene. Later

that evening, Dacer and Corbito were strangled to death. Their bodies were then doused

with gasoline and incinerated (the victims were identified through metal dental plates and

a ring).

       After the presidential administration changed in the Philippines, a senator who had

been associated with the PAOCTF warned Aquino that the government was coming after

him for the double murders. Aquino fled to the United States in response. The next year,

in a Las Vegas hotel, Aquino was heard blaming a colleague for sloppily dumping

Dacer’s car into a ravine where it was easily discovered. He complained that the task had

not been carried out properly.

       In short, there is evidence in the record that supports the finding of probable cause.

We cannot assign error to the District Court’s failure to consider the DNA evidence that
                                              4
Aquino cites because Aquino did not ask the District Court to consider it. Even if

Aquino put the DNA evidence before the District Court, and the evidence was of the type

the District Court could consider, the result would be unchanged. Aquino argues that a

report that bone fragments found at the scene tested negative for human DNA removes

the probable cause in this case. However, the same report suggests that it was the

extremely charred nature of the samples that prevented a positive identification for

human DNA. The report recommends that the sample be sent abroad for testing in labs

that routinely conduct mitochondrial DNA sequencing for human identification. Also,

according to the record, other physical evidence at the scene, namely metal dental plates

and a ring, helped to establish that the remains were Dacer and Corbito. In any event,

Aquino’s argument on this and other issues in the record are for his trial. While we do

not comment on their merits, we note the possibility that his arguments or proofs may

ultimately undermine a finding of guilt. They do not, however, undermine the finding of

probable cause.

       In short, the District Court properly denied Aquino’s petition. We will affirm the

District Court’s judgment.




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