                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOSE LUIS MUNOZ SANTOS,                   No. 12-56506
          Petitioner-Appellant,
                                          D.C. No.
              v.                    2:11-cv-06330-MMM

LINDA R. THOMAS, Warden,
         Respondent-Appellee.              OPINION


      Appeal from the United States District Court
         for the Central District of California
     Margaret M. Morrow, District Judge, Presiding

    Argued and Submitted En Banc January 12, 2016
                 Pasadena, California

                    Filed July 28, 2016

Before: Sidney R. Thomas, Chief Judge and M. Margaret
McKeown, Kim McLane Wardlaw, William A. Fletcher,
Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan,
Milan D. Smith, Jr., Sandra S. Ikuta, Mary H. Murguia and
            John B. Owens, Circuit Judges.

               Opinion by Judge Bybee;
               Dissent by Judge Callahan
2                  MUNOZ SANTOS V. THOMAS

                           SUMMARY*


                 Habeas Corpus / Extradition

    The en banc court reversed the district court’s judgment
denying habeas relief from a magistrate judge’s order
certifying Jose Luis Munoz Santos’s extradition to Mexico on
kidnapping charges, and remanded, in a case in which Munoz
sought to introduce evidence that incriminating statements
made against him by his co-conspirators were obtained by
torture and therefore could not support the probable cause
required to expedite.

    The en banc court held that the co-conspirators’ claims
that their prior statements implicating themselves and Munoz
were obtained under duress are not contradictory, but
explanatory, because they go to the competence of the
government’s evidence, and may therefore be considered by
the extradition court.

    The en banc court concluded that it could not resolve on
the record before it whether, assuming arguendo that the co-
conspirators’ confessions must be excluded, there is sufficient
evidence of probable cause to affirm. The en banc court
remanded for the district court to return the case to the
extradition court for further proceedings to address the
competency and the sufficiency of the government’s
evidence.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                MUNOZ SANTOS V. THOMAS                        3

    Dissenting, Judge Callahan, joined by Judge Ikuta, wrote
that the majority reviews the extradition court’s decision for
technical error, exceeding the scope of judicial review under
well-established Supreme Court precedent; risks converting
a probable cause hearing into a mini-trial with all the
evidentiary trappings, contrary to Supreme Court precedent;
and puts to test on American soil the reliability of the foreign
nation’s evidence, which is an assessment that the governing
treaty reserves for Mexican judicial authorities.


                         COUNSEL

Matthew B. Larsen (argued), Deputy Federal Public
Defender; Hilary L. Potashner, Federal Public Defender;
Federal Public Defender’s Office, Los Angeles, California;
for Petitioner-Appellant.

Mark R. Yohalem (argued) and Aron Ketchel, Assistant
United States Attorneys; Robert E. Dugdale, Chief, Criminal
Division; Eileen M. Decker, United States Attorney; United
States Attorney’s Office, Los Angeles, California; for
Respondent-Appellee.

Jennifer Pasquarella, ACLU Foundation of Southern
California, Los Angeles, California; Steven M. Watt, Human
Rights Program, ACLU Foundation, New York, New York;
Melissa Hooper, Human Rights First, New York, New York;
Baher Azmy, Center For Constitutional Rights, New York,
New York; for Amici Curiae the American Civil Liberties
Union, American Civil Liberties Union of Southern
California, Human Rights First, and Human Rights Watch.
4             MUNOZ SANTOS V. THOMAS

William J. Aceves, California Western School of Law, San
Diego, California; Robert E. Kohn, Kohn Law Group, Santa
Monica, California; for Amicus Curiae Juan E. Méndez,
United Nations Special Rapporteur on Torture.
                   MUNOZ SANTOS V. THOMAS                                5

                              OPINION

BYBEE, Circuit Judge:

    Jose Luis Munoz Santos (“Munoz”), appeals the district
court’s denial of habeas relief from a magistrate judge’s order
certifying Munoz’s extradition to Mexico on charges of
kidnapping.1 In his extradition hearing, Munoz sought to


 1
    We note that the extradition court’s opinion was originally reported as
In re Extradition of Santos, 795 F. Supp. 2d 966 (C.D. Cal. 2011), and that
the panel’s opinion was reported as Santos v. Thomas, 779 F.3d 1021 (9th
Cir. 2015). This is incorrect. “Many Spanish names are composed of
both the father’s and the mother’s family names, usually in that order,
sometimes joined by y (and). . . . [P]ersons with such names are usually
referred to by both family names but sometimes by only one (usually, but
not always, the first of the two family names), according to their own
preference. It is never incorrect to use both.” Chicago Manual of Style
¶ 8.11 (16th ed. 2010); see also United States v. Benitez, 34 F.3d 1489,
1497 n.7 (9th Cir. 1994) (discussing Hispanic naming conventions and
citing the Chicago Manual). By way of example, Colombian Nobel
Laureate Gabriel García Márquez may be referred to as “García” or
“García Márquez,” but generally not as “Márquez,” which is his mother’s
maiden name. In his briefs, Munoz refers to himself as “Munoz,” not
“Santos”; thus, this case is properly captioned as either Munoz v. Thomas
or Munoz Santos v. Thomas. Ironically, the extradition court notes this
naming convention in its opinion regarding Munoz’s release on bail—and
still proceeds to refer to Munoz as “Santos.” In re Extradition of Munoz
Santos, 473 F. Supp. 2d 1030, 1042 (C.D. Cal. 2006).

     This naming convention appears to have caused a great deal of
confusion among American courts generally. The Bluebook’s guidance
on this issue is unclear, noting that “if a party’s name is of Spanish or
Portuguese derivation, cite the surname and all names following,” but
without clarifying how a court is to determine what a person’s surname
actually is. The Bluebook: A Uniform System of Citation Rule 10.2.1(g),
at 100 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015). Likewise,
legal research databases frequently get this wrong.
6                 MUNOZ SANTOS V. THOMAS

introduce evidence that incriminating statements made
against him by his co-conspirators were obtained by torture,
and therefore could not support the probable cause required
to extradite. The extradition court concluded that the
evidence of coercion was not admissible in the extradition
hearing, because the allegations were contained in statements
in which the witnesses had recanted their previous
incriminating statements. The court concluded that this
rendered the allegations “contradictory” evidence—as
opposed to “explanatory” evidence—and the allegations were
therefore inadmissible in an extradition proceeding. See
Collins v. Loisel, 259 U.S. 309, 316–17 (1922). The district
court denied Munoz’s habeas petition, and a panel of this
court affirmed, relying in part on our decision in Barapind v.
Enomoto, 400 F.3d 744 (9th Cir. 2005) (en banc) (per
curiam). We took this case en banc to determine the
admissibility in an extradition hearing of evidence suggesting
that other evidence presented in the hearing was obtained
through coercion or torture.

    We hold that evidence of coercion is explanatory, and
may be considered by the extradition court, even if the
evidence includes a recantation. We reverse the judgment of
the district court, and we remand to the district court to issue
the writ of habeas corpus unless the extradition court certifies
Munoz’s extraditability after proceedings consistent with this
opinion.




    In the interest of allaying this confusion—and avoiding unintended
consequences—we provide this explanatory note as guidance for
ourselves and the lower courts.
                MUNOZ SANTOS V. THOMAS                        7

            I. THE EXTRADITION PROCESS

    The procedural history of this case will be easier to
navigate with an overview of the extradition process in mind.
Extradition law is based on a combination of treaty law,
federal statutes, and judicial doctrines dating back to the late
nineteenth century. See 18 U.S.C. §§ 3181–96; see also
Ronald J. Hedges, International Extradition: A Guide for
Judges 1 n.3 (Federal Judicial Center 2014) (“FJC Manual”)
(“The law of extradition in the United States is well
established, dating back to the late nineteenth and early
twentieth centuries.”).

    Authority over the extradition process is shared between
the executive and judicial branches. The process begins when
the foreign state seeking extradition makes a request directly
to the U.S. Department of State. If the State Department
determines that the request falls within the governing
extradition treaty, a U.S. Attorney files a complaint in federal
district court indicating an intent to extradite and seeking a
provisional warrant for the person sought. See Vo v. Benov,
447 F.3d 1235, 1237 (9th Cir. 2006); see also 18 U.S.C.
§ 3184. Once the warrant is issued, the district court, which
may include a magistrate judge, conducts a hearing to
determine “whether there is ‘evidence sufficient to sustain the
charge under the provisions of the proper treaty or
convention,’ or, in other words, whether there is probable
cause.” Vo, 447 F.3d at 1237 (quoting in part 18 U.S.C.
§ 3184).

    The Supreme Court has described these extradition
hearings to determine probable cause as akin to a grand jury
investigation or a preliminary hearing under Federal Rule of
Criminal Procedure 5.1. See, e.g., Charlton v. Kelly, 229 U.S.
8               MUNOZ SANTOS V. THOMAS

447, 461–62 (1913); Benson v. McMahon, 127 U.S. 457, 463
(1888); FJC Manual at 10. As the First Circuit described the
process:

           In probable cause hearings under
       American law, the evidence taken need not
       meet the standards for admissibility at trial.
       Indeed, at a preliminary hearing in federal
       court a “finding of probable cause may be
       based upon hearsay in whole or in part.” Fed.
       R. Crim. P. 5.1(a). This is because a
       preliminary hearing is not a minitrial of the
       issue of guilt; rather, its function is the more
       limited one of determining whether probable
       cause exists to hold the accused for trial. An
       extradition hearing similarly involves a
       preliminary examination of the evidence and
       is not a trial.

United States v. Kin-Hong, 110 F.3d 103, 120 (1st Cir. 1997)
(citations omitted). We have said that the extradition court’s
review is limited to determining, first, whether the crime of
which the person is accused is extraditable, that is, whether it
falls within the terms of the extradition treaty between the
United States and the requesting state, and second, whether
there is probable cause to believe the person committed the
crime charged. See, e.g., Cornejo-Barreto v. Seifert, 218 F.3d
1004, 1009 (9th Cir. 2000), overruled on other grounds by
Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir.
2012) (en banc); see also Zanazanian v. United States,
729 F.2d 624, 625–26 (9th Cir. 1984) (describing the inquiry
as “whether: [1] the extradition judge had jurisdiction to
conduct proceedings; [2] the extradition court had jurisdiction
over the fugitive; [3] the extradition treaty was in full force
                MUNOZ SANTOS V. THOMAS                        9

and effect; [4] the crime fell within the terms of the treaty;
and [5] there was competent legal evidence to support a
finding of extraditability”).

     Foreign states requesting extradition are not required to
litigate their criminal cases in American courts. Accordingly,
the scope of the extradition court’s review “is limited to a
narrow set of issues concerning the existence of a treaty, the
offense charged, and the quantum of evidence offered. The
larger assessment of extradition and its consequences is
committed to the Secretary of State.” Kin-Hong, 110 F.3d at
110. “It is fundamental that the person whose extradition is
sought is not entitled to a full trial at the magistrate’s
probable cause hearing.” Eain v. Wilkes, 641 F.2d 504, 508
(7th Cir. 1981). Rather, “[t]he function of the committing
magistrate is to determine whether there is competent
evidence to justify holding the accused to await trial, and not
to determine whether the evidence is sufficient to justify a
conviction.” Collins, 259 U.S. at 316. Thus, courts have
emphasized that “[t]he person charged is not to be tried in this
country for crimes he is alleged to have committed in the
requesting country. That is the task of the . . . courts of the
other country.” Eain, 641 F.2d at 508; see FJC Manual, at 10
(“An extradition hearing is not a criminal trial and is not
intended to ascertain guilt.”). So long as “the judicial officer
determines that there is probable cause, he ‘is required to
certify the individual as extraditable to the Secretary of
State.’” Vo, 447 F.3d at 1237 (quoting Blaxland v.
Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198,
1208 (9th Cir. 2003)).

    Given the limited nature of extradition proceedings,
neither the Federal Rules of Evidence nor the Federal Rules
of Criminal Procedure apply. See Mainero v. Gregg,
10              MUNOZ SANTOS V. THOMAS

164 F.3d 1199, 1206 (9th Cir. 1999); see also Fed. R. Crim.
P. 1(a)(5)(A). Instead, 18 U.S.C. § 3190 provides that
evidence may be admitted as long as the evidence is
authenticated and would “be received for similar purposes by
the tribunals of the foreign country from which the accused
party shall have escaped.” The accused, however, does not
have the right to introduce evidence in defense because that
would require the government seeking his extradition “to go
into a full trial on the merits in a foreign country.” Collins,
259 U.S. at 316 (quoting In re Wadge, 15 F. 864, 866
(S.D.N.Y. 1883)). The Supreme Court has drawn a
distinction between evidence “properly admitted in behalf of
the [accused] and that improperly admitted.” Id. at 316.
Evidence that may be admitted is evidence that “explain[s]
matters referred to by the witnesses for the government,”
Charlton, 229 U.S. at 461, while “evidence in defense” that
merely “contradict[s] the testimony for the prosecution” may
be excluded, Collins, 259 U.S. at 316–17 (quoting Charlton,
229 U.S. at 461). See Barapind, 400 F.3d at 750
(“[E]xtradition courts ‘do[] not weigh conflicting evidence’
in making their probable cause determinations.”) (second
alteration in original) (quoting Quinn v. Robinson, 783 F.2d
776, 815 (9th Cir. 1986)); Hooker v. Klein, 573 F.2d 1360,
1369 (9th Cir. 1978) (The “[a]dmission of evidence proffered
by the fugitive at an extradition proceeding is left to the
sound discretion of the court, guided of course by the
principle” that a fugitive’s right to introduce evidence
rebutting probable cause is limited to introducing evidence
that is “explanatory,” but not “contradictory.”); Mainero,
164 F.3d at 1207 n.7.

    The difference between “explanatory” and
“contradictory” evidence is easier stated than applied. The
federal courts have struggled to distinguish between the two.
                MUNOZ SANTOS V. THOMAS                     11

See, e.g., Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006)
(“In practice,” the line between contradictory and explanatory
evidence “is not easily drawn”); In re Extradition of Strunk,
293 F. Supp. 2d 1117, 1122 (E.D. Cal. 2003) (“The
distinction between evidence which ‘explains’ and evidence
which ‘contradicts’ seems metaphysical.”). Nevertheless, we
have generally settled on the principle that “explanatory”
evidence is evidence that “explains away or completely
obliterates probable cause,” whereas contradictory evidence
is that which “merely controverts the existence of probable
cause, or raises a defense.” Mainero, 164 F.3d at 1207 n.7;
see also Eain, 641 F.2d at 511 (“An accused in an extradition
hearing has no right to contradict the demanding country’s
proof or to pose questions of credibility as in an ordinary
trial, but only to offer evidence which explains or clarifies
that proof.”); Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d
Cir. 1973) (holding that the extradition court had properly
excluded evidence that “would in no way ‘explain’—or, as
the district judge put it, ‘obliterate’—the government’s
evidence, but would only pose a conflict of credibility”). We
have also described “contradictory” evidence as evidence
“the credibility of which could not be assessed without a
trial.” Barapind, 400 F.3d at 749–50. In practice, this means
that an individual contesting extradition may not, for
example, present alibi evidence, facts contradicting the
government’s proof, or evidence of defenses like insanity, as
this tends to call into question the credibility of the
government’s offer of proof. Hooker, 573 F.2d at 1368.
However, the accused may testify “to things which might
have explained ambiguities or doubtful elements” in the
government’s case. Collins, 259 U.S. at 315–16. But he may
not impeach government witnesses or produce witnesses
whose testimony contradicts evidence already offered by the
government. See Charlton, 229 U.S. at 461.
12              MUNOZ SANTOS V. THOMAS

    If the extradition court determines that there is probable
cause to extradite, it enters an order certifying extradition to
the Secretary of State, who ultimately decides whether to
surrender the individual to the requesting state. 18 U.S.C.
§ 3186; Vo, 447 F.3d at 1237; Quinn, 783 F.2d at 789; Exec.
Order No. 11,517, 35 Fed. Reg. 4,937 (Mar. 19, 1970),
reprinted in 18 U.S.C. § 3193 Historical & Revision Notes.
Once the district court has made its probable cause
determination and entered an order certifying extradition, the
order can only be challenged via a writ of habeas corpus,
because the order is not final and there is no other statutory
provision for direct appeal of an extradition order. Vo,
447 F.3d at 1240; see Collins v. Miller (Collins I), 252 U.S.
364, 368 (1920).

               II. PROCEEDINGS BELOW

    Munoz is wanted in Mexico on kidnapping charges
arising out of the kidnapping for ransom of Dignora
Hermosillo Garcia (“Hermosillo”) and her two young
daughters from their home near Tepic, a city in the state of
Nayarit, Mexico, in August 2005. Hermosillo and her
daughters were abducted from their home at gunpoint by a
man in a ski mask. The abductor eventually abandoned the
two girls, one at a time, by the side of the road; the youngest
of the girls died before she was found. Hermosillo was
similarly abandoned, with her mouth, eyes, ears, hands, and
feet duct taped, after giving her captor the PIN for her bank
card and her husband’s cell phone number. She managed to
free herself using a piece of barbed wire, walked to the
highway, and hitched a ride into the town of Jolotemba,
where she called her husband to come pick her up.
                 MUNOZ SANTOS V. THOMAS                       13

    Mexico requested Munoz’s extradition. He was arrested
in the United States on May 17, 2006 in connection with the
kidnapping.

A. Extradition Hearing

    The U.S.-Mexico extradition treaty states that
“[e]xtradition shall be granted only if the evidence be found
sufficient, according to the laws of the requested Party . . . to
justify the committal for trial of the person sought if the
offense of which he has been accused had been committed in
that place.” U.S.-Mexico Extradition Treaty, art. 3, May 4,
1978, T.I.A.S. No. 9656. In other words, we assess whether,
based on the evidence, the person could be brought to trial for
the same crime in the United States. Munoz stipulated below
that all elements except probable cause have been
satisfied—thus, the only element disputed in the extradition
hearing, and here on appeal, is whether the probable cause
element is satisfied. The key question is what evidence the
extradition court may consider in determining whether the
charge against Munoz is supported by probable cause.

    1. The government’s evidence

    In order to establish probable cause that Munoz was
involved in the kidnapping, the government relied principally
on statements from two of Munoz’s alleged co-conspirators,
Jesus Servando Hurtado Osuna (“Hurtado”), and Fausto
Librado Rosas Alfaro (“Rosas”). The government also
submitted three additional statements to corroborate Rosas’s
and Hurtado’s stories. We review this evidence in detail
below.
14              MUNOZ SANTOS V. THOMAS

       a. Rosas’s statement

    On March 27, 2006, Rosas submitted a written
preliminary statement to the presiding criminal trial judge in
his case in Mexico implicating Munoz, Hurtado, and himself
in the kidnapping of Hermosillo and her daughters.
According to his statement, Rosas abducted Hermosillo and
her daughters, but Munoz was the brains of the operation.
Rosas stated that he had known Munoz for several years
because they “have a business in which [they] buy and sell
clothes.” In July 2005, Munoz contacted Rosas on the phone
about a “job” he was planning, and stated that he would
explain in detail at a planned meeting in Tepic, Nayarit. In
mid-July, Rosas met with Munoz, a man named “Negro,”
whom Rosas identified as Hurtado, and two others. At this
point, Rosas learned what the “job” was. Munoz wanted to
recruit Rosas to assist in a plan to kidnap Hermosillo and hold
her for ransom, and Rosas agreed to participate. A few days
later, the conspirators met at a nightclub at Zapata and
Zacatecas Streets to discuss the details, including the amount
of ransom to be demanded from “Beto.” “Beto” is a common
nickname for Roberto, which is the name of Hermosillo’s
husband, Roberto Castellanos Meza (“Castellanos”).
According to Rosas, Hurtado was invited to participate in the
job at this second meeting, and eventually agreed to join.

    On August 9, 2005, the conspirators met again, and Rosas
told Hurtado that his job was to watch the house and let the
others know “when a lady in a white van arrived.” On
August 18, the day of the job, Hurtado informed the
conspirators that Hermosillo had arrived home with her two
daughters in a white Cherokee van. Rosas stated that he “hid
behind the main door,” and once in the house, threatened
Hermosillo with a gun while wearing a black ski mask. He
                    MUNOZ SANTOS V. THOMAS                              15

was not supposed to take the two girls, but became nervous
and put them in the backseat of the white Cherokee as well.

     During the drive, Munoz called Rosas and instructed him
to release the girls together. Rosas first released the girls and
then Hermosillo at three different locations along the side of
the road. He met with Munoz later that same day and gave
him Hermosillo’s cell phone. Munoz then called Castellanos,
and demanded a ransom for Hermosillo and the girls even
though they had already been released. Rosas stated that
Munoz “kept making phone calls,” and that he did not know
why no one went to retrieve the girls from where he had left
them, “because the plan was to take them to [a] rented house
to take care of them.” Munoz later got into an argument with
one of the other conspirators, told Rosas that they “were in
terrible trouble,” and that he, Munoz, would handle it himself.
Munoz then “escaped” and went to Hermosillo, Sonora.

         b. Hurtado’s statement

    Hurtado made a sworn statement to a Deputy District
Attorney in Tepic, Nayarit, on March 14, 2006. He requested
the assistance of his public defender, Juan Manuel Ramírez
Dueñas, who accepted the designation. Hurtado first asserted
that a statement he had given on October 12, 2005 to the
district attorney was “completely false,”2 and that he had been

  2
    In October 2005, Hurtado gave a highly detailed, sworn statement to
the Deputy District Attorney that told a very different story and which was
not presented as part of the government’s evidence in the extradition court.
In his October 2005 statement, Hurtado stated that in early August before
the kidnapping, he and two friends, El Pelon and El Sapo, had been
smoking marijuana and made a plan to rob Hermosillo’s house, because
it “looked luxurious.” Hurtado knew the house because he worked as a
carpenter nearby. El Pelon and El Sapo agreed and said they would give
16                 MUNOZ SANTOS V. THOMAS

“inventing things as they came into [his] head” to throw off
the police investigation of the kidnapping. He then stated he
was ready to tell what he knew of the kidnapping.

    During the last week of July 2005, Hurtado left his
brother’s carpentry shop, and while walking, ran into El
Pelon, whom he identified as Jorge Gonzalo Lopez Chavez.
Hurtado had known Lopez Chavez for about twenty years
because they lived in the same neighborhood. They bought
some beers and then Hurtado accompanied Lopez Chavez to


Hurtado 30,000 pesos to do the job. On August 18, at about 5:00 in the
evening, Hurtado called El Sapo’s phone and asked him whether he was
going to participate in the robbery as planned. El Sapo said yes and that
he was planning to enter the house with someone named “Chonte.” At
8:00, Hurtado called a taxi, which he remembered was a white Atos, and
went to Hermosillo’s house. He stopped about two blocks away and
called El Sapo again, who told him to wait until 10:00. When Hurtado
called El Sapo again two hours later, he told him that he and Chonte were
on the way to the house. Hurtado stated that he saw El Sapo’s light brown
Ford truck drive by the house and assumed that all was going according
to plan. Hurtado then told the taxi driver to take him to buy cocaine at a
nearby motel known as the “Posada Real.” Hurtado and the taxi driver
then drove back past Hermosillo’s house, where they did not see anyone.

     Hurtado said they got about two blocks down the street before they
were stopped by several cars driven by men. The men pulled Hurtado out
of the taxi and put him in the backseat of one of the other cars and
demanded “Where is the truck?” Hurtado said he didn’t know anything
and that he had only been in the area to drink beer. The men questioned
him for about thirty minutes and then put him and the taxi driver in the
backseat of another car, where they were told that the men were
“investigating something awful that had happened.” Hurtado and the taxi
driver were eventually released, and the taxi driver took Hurtado home.

     Finally, Hurtado stated that he recognized a photo of Munoz that the
District Attorney’s Office showed him, and that he only knew Munoz by
sight.
                MUNOZ SANTOS V. THOMAS                     17

a paint store, and when they arrived, Lopez Chavez got out of
the car and began speaking with El Chilango, whom Hurtado
identified as Rosas. Hurtado stated that he had only known
Rosas by sight for a few months. The three went back out to
buy more beer and then returned to the paint store, where they
stayed for about fifteen minutes, until Lopez Chavez took
Hurtado home.

    Approximately four days later, Hurtado ran into Lopez
Chavez again, and Lopez Chavez asked Hurtado to
accompany him downtown. They ran into Rosas again and
the three went to a nightclub located on Zacatecas and Zapata
streets. Munoz was waiting for them there. Hurtado did not
know Munoz at that time. As they were inside drinking,
Hurtado overheard Rosas ask Munoz, “Hey, what’s going on
with the job?” Hurtado didn’t pay any attention to their
conversation, and eventually left the club with Lopez Chavez.
On the way home, he asked Lopez Chavez about the “job,”
but Lopez Chavez did not answer.

    The next day, Hurtado went to Lopez Chavez’s house to
ask again about the “job,” because he needed money. Lopez
Chavez said that he could take Hurtado to see Rosas, who
would tell him about the job, and Hurtado agreed. Lopez
Chavez and Hurtado met with Rosas at the same nightclub,
and Rosas pulled Hurtado aside, and asked if he “was up for
a kidnapping.” Hurtado said yes, thinking that Rosas was
kidding. On August 9, Hurtado met with Rosas again, and
Rosas confirmed that the kidnapping plot was real. Hurtado
again agreed to participate and Rosas told him that all he had
to do was watch the house and tell the others when
Hermosillo arrived. Rosas showed Hurtado pictures of
Hermosillo and the two girls, and told him that he would find
him when it was time to put the plan into action.
18              MUNOZ SANTOS V. THOMAS

    On August 18, Rosas and Lopez Chavez came to
Hurtado’s house and told him that they were going to pull the
job that night. Hurtado was supposed to watch the house and
call Rosas’s cell phone when Hermosillo arrived, and Rosas,
Munoz, and another conspirator, Lopez Mendivil, would grab
Hermosillo. The three were to drive Hermosillo to a rented
house in a nearby town, and Hurtado was to wait and would
be paid by Rosas. At about 9:00 that night, Hurtado took a
white taxi to the neighborhood to keep watch. He called
Rosas from a payphone when Hermosillo drove up, and then
watched as Lopez Chavez and Rosas drove up to the house.
Rosas ran into the garage “hooded,” put Hermosillo and her
two daughters in Hermosillo’s car, and drove off at “full
speed.”

    Hurtado got back into the taxi and drove by the place
where Munoz and Lopez Mendivil were waiting, where he
heard Munoz “telling . . . off” Rosas on the phone for not
following the plan. The taxi then drove Hurtado home.
Hurtado also noted that when he was driving around in the
taxi that same night after the kidnapping, he was stopped
twice by “afi agents” (Mexican federal authorities) and
questioned about what he was doing at that time of night, but
then released. He did not see the other members of the
conspiracy again.

    At the end of this statement, Hurtado declared that he had
read Munoz’s statement and that Munoz, Lopez Chavez,
Rosas, and Lopez Mendivil lied when they denied their
involvement. He identified Munoz’s photograph as well.
Finally, he stated that he was under “no coercion, physical or
moral violence on the part of [the District Attorney’s] office
or on the part of the officers of the state police.”
                MUNOZ SANTOS V. THOMAS                      19

       c. Other evidence

    The government submitted three other statements to
corroborate Rosas’s and Hurtado’s statements implicating
Munoz. It included Hermosillo’s statement describing the
details of her kidnapping and release and her identification of
Rosas. According to Hermosillo, the abductor tugged on his
ski mask while they were driving, and Hermosillo noticed
that he had “a mole or a scar” on his nose. Hermosillo later
identified Rosas as the man who had abducted her from her
home based on photographs the Mexican authorities showed
her. The government also introduced a statement by Benigno
Andrade Hernandez (“Andrade”), who told Mexican
prosecutors that he had been approached by Rosas and
Munoz a month or so before the kidnapping, and asked if he
was interested in “pulling a job” to extort “Beto” for two
million pesos. Finally, the government included a statement
from Castellanos, made to Mexican prosecutors, in which
Castellanos described a phone call he had received from his
wife’s phone the day of the kidnapping, but had been cut off
before he could answer. Castellanos tried unsuccessfully to
locate his family after his brother informed him that the
garage door to the family’s house had been left open, and that
Hermosillo’s car was missing. The next morning, Castellanos
received a call from Hermosillo asking him to pick her up in
the town where Rosas had abandoned her.

   2. Munoz’s additional evidence

    To undermine the government’s showing of probable
cause, Munoz sought to introduce additional evidence at his
extradition hearing, including several statements by Rosas
and Hurtado alleging that their statements implicating Munoz
20                 MUNOZ SANTOS V. THOMAS

had been obtained by torture or coercion. Again, we review
these statements in detail.

         a. Rosas’s additional statements

    On May 25, 2006, two months after providing his original
preliminary statement, Rosas was given the opportunity to
verify or retract his preliminary statement before a Mexican
judge, under oath.3 Rosas retracted, asserting that the police
had forced him to sign his previous incriminating statement.
He specifically identified a man named Martin Lujan, whom
he described as a “coordinator,” who “took [him] out of the
place [he] was in by beating and threatening [him].” Rosas
was told that if he did not sign the statement something “bad”
would happen to his family, and that the police knew his wife
had arrived in Hermosillo, Sonora. Rosas was asked whether
state police forced him to appear before the media and
“declare himself guilty,” and he answered, “Yes.”

    Munoz also sought to introduce another statement by
Rosas, made on June 20, 2006, again sworn in court. Rosas
was represented by a public defender. He denied the parts of
his preliminary statement in which he implicated himself,
stating that when he was taken into court, he was only asked
whether he recognized his own signature on the statement.
He was not read the statement itself. He was told that
something bad would happen to his family, and that the


 3
   In Mexican courts, witnesses are given an opportunity to accept, reject,
or amend their preliminary or “ministerial” statements when they make
their first appearances before the judge trying a case—the purpose being
to weed out false or coerced confessions. See, e.g., In re Extradition of
Garcia, 890 F. Supp. 914, 923–24 (S.D. Cal. 1994) (explaining the
procedure in Mexican courts).
                MUNOZ SANTOS V. THOMAS                      21

police knew his wife and son had arrived in a black Altima.
Rosas also stated that he was beaten and threatened on several
occasions while in custody. He again identified Martin
Lujan, whom he described as the “General Director.”

    According to his June 20th statement, when Rosas was
detained, he was taken to a cell, “without lights, and with
only a chair.” He was tied to the chair, had a bag placed over
his head, and was struck repeatedly in the chest while being
asked what he knew about the kidnapping. Rosas repeated
facts that he remembered from the district attorney’s file on
the case, “so that they would stop torturing [him].” The next
morning he was taken out of his cell, and told that he was
going to a press conference, at which he was expected to
implicate himself and Munoz, or else he would be beaten
again. Rosas went to the press conference but denied his
involvement in the kidnapping; he was brought back to the
prison and held incommunicado for two days, during which
time Lujan periodically beat him.

    Eventually, the police sent a detailed written statement to
Rosas through his lawyer, and Rosas was directed to sign it
or else “something serious” would happen to his family.
Rosas’s lawyer “never told [him] anything” regarding the
statement—Rosas stated that he made the decision to sign the
statement alone, “due to the threats and beatings” to which he
was subjected. Rosas was asked in court if Lujan ever told
him why he wanted to force Rosas to confess, and Rosas said
that Lujan told him that he was under pressure from “the
father of the victims,” who was “calling him and pressuring
him from the outside.”
22              MUNOZ SANTOS V. THOMAS

       b. Hurtado’s additional statements

    On March 22, 2006, Hurtado gave a similar statement
before a judge in Mexico, under oath and represented by
private counsel. Hurtado stated that he “[did] not ratify”
either his October 12, 2005 or March 14, 2006 statements,
because the statements were false and had been obtained
under torture. Hurtado stated that after he dropped his
daughter off at his mother’s house, he was abducted, and
forced into a “gray Lobo truck with tinted windows.” A
“cap” was placed over his head, and he was taken to an
unknown location. Someone started hitting him in the face,
asking him to “tell them the truth.” A plastic bag was placed
over his head and tightened until he could not breathe.
Hurtado told his captors that he didn’t know anything. He
was shown photographs of people but did not recognize
anyone. His captors poured water into his nose and mouth,
beat him, and questioned him again. According to Hurtado,
this went on for several days. He was told more than once
that if he did not “cooperate” his daughter would be given to
him in “pieces.”

    Eventually, Hurtado was taken out at night, blindfolded,
and presented to “a man at a desk,” where he was told that if
he stated what he had been told to state, he would be allowed
to see his family. He made his statement as directed, and then
was taken back to where he was being held captive. The day
before he was brought before the court, he was taken to the
Public Prosecutor’s Office, and the chief of the judiciary
police told him that he had to “say what they had told [him]
before.” He was not allowed to call his family or speak with
a lawyer. The police brought him before “cameramen” who
were taking pictures and asking questions.
                 MUNOZ SANTOS V. THOMAS                       23

    Hurtado stated that he had nothing to do with the
kidnapping and did not know anyone involved. He identified
the “man who caught [him]” as a “potbellied, tall judiciary
police office with short, wavy hair.” His attorney asked the
court to take note of Hurtado’s injuries, and the Clerk of the
Court noted that Hurtado had “minor bruises on both
cheekbones . . . complain[ed] about [a] left earache, as well
as pain on the right foot next to the shin.”

    Hurtado gave another sworn statement before a judge on
May 25, 2006, again represented by counsel, in which he
reiterated much of his March 22 statement. He alleged that
he had been detained by the state police for twelve days,
during which time he was tortured, had bags placed over his
face, was punched in the stomach, had water poured into his
nose and mouth, and received death threats. He reiterated
that he was “force[d]” to make incriminating statements.

    On November 21, 2006, Hurtado gave further testimony
in court, under oath and represented by counsel. He wished
to add to his previous statements. He again reiterated that he
had been detained, tortured, and kept hooded for days, and
repeatedly been shown photographs of people he could not
identify. He added that after he had been taken to the
Prosecutor’s Office to make a statement, he was taken again
to the house where he was being held, and was given a
written statement to sign. Several days later, he was taken
back to the Prosecutor’s Office, and when he arrived at the
detention center, an inmate named Martin Lujan threatened
him, and told him not to change his statement or he would be
killed. He stated that he was afraid for his life and that of his
family.
24              MUNOZ SANTOS V. THOMAS

    Finally, Munoz sought to introduce a declaration Hurtado
made under oath on June 10, 2009, in which Hurtado
essentially echoed the details of his previous statements. He
repeated that he had been detained and beaten by the police
for twelve days, told what statements to make, and that he
ultimately agreed to sign a written statement because his
family was threatened.

        c. Other evidence

    Munoz also sought to submit evidence to corroborate the
torture allegations, including evidence that he had been
tortured and his family threatened; a statement from another
alleged co-conspirator, Lopez Chavez, alleging that he had
been tortured; evidence that Rosas’s lawyer colluded with the
Mexican government to get Rosas to sign an incriminating
statement; evidence supporting Munoz’s alibi; and evidence
regarding the acquittal of another co-conspirator for
insufficient evidence.

     3. The extradition court’s decision

    In a published order, a magistrate judge, sitting as the
extradition court, carefully considered the government’s
evidence against Munoz and Munoz’s offer of evidence
rebutting the government’s probable cause showing. The
court concluded that Munoz was extraditable and declined to
consider the additional evidence Munoz sought to admit,
including the statements by Rosas and Hurtado alleging
torture. In re Extradition of Munoz Santos, 795 F. Supp. 2d
966 (C.D. Cal. 2011). The extradition court focused on the
fact that the allegations of coercion were contained in
statements in which Rosas and Hurtado had also recanted
their previous statements implicating Munoz. Id. at 987. The
                   MUNOZ SANTOS V. THOMAS                              25

court noted that the Ninth Circuit had “never determined”
whether “recantation evidence is admissible in an extradition
hearing.” Id. at 988 (quoting Mainero, 164 F.3d at 1207 n.7).
However, the extradition court relied on our decision in
Barapind, in which we concluded that probable cause was not
undermined in an extradition proceeding by a witness’s
recantation of a prior incriminating statement, because the
credibility of the recantation could not be determined without
a trial, “which would exceed the limited mandate of an
extradition court.” Id. (quoting Barapind, 400 F.3d at 749).
The extradition court concluded that the recantation
statements were “contradictory” evidence inadmissible in
extradition proceedings. Id. at 988–89. Because Rosas’s and
Hurtado’s allegations of coercion were included in their
recantation statements, the allegations of coercion were
likewise inadmissible “contradictory” evidence. Id. at 989.
Accordingly, based on the admissible evidence offered by the
government, the extradition court concluded that there was
sufficient evidence to support a finding of probable cause,
and it certified that Munoz was extraditable. Id. at 979–83.

B. Habeas Proceedings

    In 2011, Munoz filed a habeas petition challenging the
extradition order, claiming that the extradition court had
committed legal error in ruling the evidence of torture
inadmissible. App. at 2–3. In a thorough opinion, the district
court declined to issue the writ.4 The district court agreed
that if Munoz could show that the confessions of key
witnesses “were procured through torture or duress,” that


 4
   The district court’s opinion is not published in any database. Because
of its importance to this case, we have reprinted it in an appendix to this
opinion.
26              MUNOZ SANTOS V. THOMAS

showing would “undermine the evidence on which the
government relies to meet its burden.” App. at 8. The court
distinguished between “recantation” statements that directly
contradict a previously offered version of the facts, which
would require the extradition court to make impermissible
credibility determinations, and evidence that a statement was
procured by torture. App. at 10. The court explained that
evidence that a statement was procured by torture is not
necessarily “contradictory,” and thus inadmissible in
extradition proceedings, because it does not inherently
“present an alternate version of events, or factually contradict
the [requesting] government’s probable cause narrative.”
App. at 11. Rather, evidence that a statement was obtained
through torture “addresses the reliability of the incriminating
statements the government has presented and questions their
competence.” App. at 11. Therefore, such evidence is
theoretically admissible in extradition proceedings. App. at
11–12. The court observed:

       While extradition courts cannot weigh
       conflicting evidence, evidence of torture does
       not require such weighing. Evidence of
       torture addresses the circumstances under
       which the government’s witnesses made
       inculpatory statements; an extradition court
       properly considers evidence of torture, duress,
       or unlawfully procured confessions in
       deciding the reliability of the government’s
       evidence.

App. at 12.

   Nevertheless, the district court concluded that it was
impossible to distinguish between Rosas’s and Hurtado’s
                   MUNOZ SANTOS V. THOMAS                              27

statements regarding torture, and their recantation of their
previous incriminating statements.5 Evaluating the torture
statements “would almost certainly require the extradition
court to determine whether the recantations are more reliable
than the original inculpatory statements.” App. at 19. Thus,
the district court ultimately agreed with the extradition court
that the torture statements could not be considered. Likewise,
the district court concluded that admission of the other
evidence Munoz sought to offer, e.g., the alibi evidence, etc.,
was either irrelevant to the question of how the inculpatory
statements were obtained or would require the extradition
court to make impermissible credibility determinations and
thus was properly excluded. App. at 20–24.

    A panel of this court affirmed, agreeing that the
statements concerning torture were properly excluded by the
extradition court, and concluding that Rosas’s and Hurtado’s
statements were “inadmissible recantations.” Munoz Santos
v. Thomas, 779 F.3d 1021, 1026–28 (9th Cir. 2015). The
panel concluded that the “allegations of torture are
‘inextricably intertwined’ with Rosas’[s] and Hurtado’s
recantations,” because “[e]ach recantation includes both a
disavowal of the witness’s prior inculpatory statements, as
well as allegations that the statements were procured by
torture.” Id. at 1027. As a result, “the extradition court
would necessarily have had to evaluate the veracity of the
recantations and weigh them against the conflicting

 5
   The government argued that probable cause could be established on the
basis of Hermosillo’s, Castellanos’s and Andrade’s testimony alone, given
that there was no claim that their testimony was coerced. The district
court found the question “close,” but concluded that “these statements do
not provide an adequate basis for affirming the extradition court’s order.”
App. at 17 n.41. That conclusion made Hurtado’s and Rosas’s statements
critical to the government’s case.
28              MUNOZ SANTOS V. THOMAS

inculpatory statements. Doing so would have exceeded the
limited authority of the extradition court.” Id.

  We granted en banc review and vacated the panel opinion.
Munoz Santos v. Thomas, 804 F.3d 998 (9th Cir. 2015).

  III. JURISDICTION AND STANDARD OF REVIEW

    The extradition court had jurisdiction under 18 U.S.C.
§ 3184. The district court had jurisdiction pursuant to
28 U.S.C. § 2241(a), and we have jurisdiction under
28 U.S.C. §§ 1291 and 2253(a). Under § 3184, “any justice
or judge of the United States, or any magistrate judge
authorized so to do by a court of the United States” may sit as
an extradition court to consider whether the evidence is
“sufficient to sustain the charge under the provisions of the
proper treaty or convention.” If so, the extradition court
“shall certify the same . . . to the Secretary of State.”
18 U.S.C. § 3184.

    There is no right of direct appeal to a district court or a
court of appeals from the extradition court’s certification of
extraditability. Because the extradition court’s order is not
final for purposes of 28 U.S.C. § 1291, the “only available
avenue to challenge an extradition order” is through a habeas
petition. Vo, 447 F.3d at 1240; see Skaftouros v. United
States, 667 F.3d 144, 157 (2d Cir. 2011); Oen Yin-Choy v.
Robinson, 858 F.2d 1400, 1402 (9th Cir. 1988).

       The district court’s habeas review of an
       extradition order is limited to whether: (1) the
       extradition magistrate had jurisdiction over
       the individual sought, (2) the treaty was in
       force and the accused’s alleged offense fell
                 MUNOZ SANTOS V. THOMAS                        29

        within the treaty’s terms, and (3) there is “any
        competent evidence” supporting the probable
        cause determination of the magistrate.

Vo, 447 F.3d at 1240; see Fernandez v. Phillips, 268 U.S.
311, 312 (1925). Our review is similarly circumscribed. We
review the district court’s judgment de novo. McKnight v.
Torres, 563 F.3d 890, 892 (9th Cir. 2009). In this context,
that means that, with respect to the extradition court, we stand
in the same position as did the district court. We review the
extradition court’s legal rulings de novo, and its findings of
fact for clear error. And “[b]ecause the magistrate’s probable
cause finding is thus not a finding of fact ‘in the sense that the
court has weighed the evidence and resolved disputed factual
issues,’ it must be upheld if there is any competent evidence
in the record to support it.” Quinn, 783 F.2d at 791 (quoting
Caplan v. Vokes, 649 F.2d 1336, 1342 n.10 (9th Cir. 1981)).

                       IV. ANALYSIS

    The issue before us is whether the extradition court
properly refused to consider evidence that Rosas’s and
Hurtado’s statements—in which they confessed to their
involvement in the kidnapping and implicated Munoz—were
obtained by coercion, including torture. The extradition court
refused to consider evidence of coercion because it was
contained in subsequent statements in which Rosas and
Hurtado recanted their earlier testimony. The extradition
court excluded the subsequent statements because they were
“contradictory” and not “explanatory,” rendering the
statements inadmissible under the Supreme Court’s
framework governing an extraditee’s ability to present
evidence in the extradition proceeding. For reasons we
explain in Part A, this was legal error. The extradition court
30              MUNOZ SANTOS V. THOMAS

should have considered the evidence of coercion because a
coerced statement is not competent evidence and cannot
support probable cause.

    In Part B we address a second issue: whether, assuming
arguendo that we must exclude Rosas’s and Hurtado’s
confessions, there is sufficient evidence of probable cause to
affirm. We conclude that we cannot resolve this question on
this record, and we remand this case to the district court with
instructions to return this case to the extradition court for
further proceedings to address the competency and the
sufficiency of the government’s evidence.

A. Exclusion of Rosas’s and Hurtado’s Statements

    Our task is to determine whether there is any competent
evidence supporting the extradition court’s finding of
probable cause. The extradition court found probable cause
based largely on inculpating statements made by Rosas and
Hurtado, Munoz’s alleged co-conspirators. We took this case
en banc to clarify whether evidence that these statements
were obtained by torture or other coercion constitute
“contradictory” evidence inadmissible in an extradition
proceeding, or admissible “explanatory” evidence.

    There can be little question that, standing by themselves,
Rosas’s March 27, 2006 statement and Hurtado’s March 14,
2006 statement, whether considered separately, together, or
together with statements from Hermosillo (the victim),
Castellanos (her husband), and Andrade (who may have
heard early plans for the kidnapping) constitute probable
cause to believe that Munoz participated in the kidnapping of
Hermosillo and her daughters. The statements were detailed
and authenticated. Hurtado gave his statement in the
                 MUNOZ SANTOS V. THOMAS                       31

presence of his public defender and under oath to a deputy
district attorney in Mexico. Rosas submitted his statement in
writing to the judge presiding over his case and asked that it
be included in the court’s record.

     The extradition court, however, refused to consider
subsequent statements by Rosas and Hurtado in which they
recanted their initial statements, claiming that the Mexican
police had coerced them into making those statements. The
extradition court, and the district court on habeas, concluded
that the allegations of torture were inadmissible because, as
the district court described it, the claims were “inextricably
intertwined” with the recantation statements. App. at 19–20;
Extradition of Munoz Santos, 795 F. Supp. 2d at 988–90. In
other words, both courts reasoned that it was impossible to
determine the credibility of the allegations of torture without
determining the credibility of Rosas’s and Hurtado’s
recantation statements. Because the credibility of the
recantation statements could not be determined without a
trial, those statements were inadmissible as “contradictory”
evidence. App. at 19–20; Id. at 990.

     As we review Rosas’s and Hurtado’s various subsequent
statements, which are quite detailed, their claims are of two
types (and here we are simplifying): (1) I wasn’t involved,
and (2) the reason I previously said I was involved is that I
was tortured or otherwise coerced. The first type of statement
is a recantation of the kind that courts have properly refused
to consider. For example, in Barapind we considered
whether there was evidence to support Barapind’s extradition
to India for crimes in connection with his activities as a leader
in the All India Sikh Student Federation. In support of the
charges, India produced an affidavit from a police inspector,
who claimed that Nirmal Singh, an eyewitness, had identified
32              MUNOZ SANTOS V. THOMAS

Barapind as one of the principals in a shootout with
government officials. Barapind, 400 F.3d at 752. Barapind
produced a second affidavit from Nirmal in which he denied
having identified Barapind at all. “The extradition court
determined that Barapind’s evidence was insufficient to
destroy probable cause, concluding that a trial would be
required to determine who was telling the truth.” Id. We
concluded that the court made the proper decision. Id.

    Similarly, in Bovio v. United States, the petitioner argued
that probable cause was lacking, in part, because the major
witness on which the government relied had admitted to lying
during the investigation. 989 F.2d 255, 259 (7th Cir. 1993).
The Seventh Circuit rejected this argument, noting that
“Bovio [had] no right to attack the credibility of witnesses,”
because “issues of credibility are to be determined at trial.”
Id. Consistent with both Barapind and Bovio, in Shapiro v.
Ferrandina, the Second Circuit upheld the extradition court’s
refusal to admit evidence “that one declarant of an
inculpatory statement had once blackmailed Shapiro’s father
and that certain fraudulent statements alleged to have been
made by Shapiro had not in fact been made.” 478 F.2d at
905. The court noted that “such statements would in no way
‘explain’ . . . the government’s evidence, but would only pose
a conflict of credibility.” Id.

    Rosas’s and Hurtado’s recantations of their prior
confessions are, indeed, contradictory. But their claims that
their prior statements implicating themselves and Munoz
were obtained under duress are not contradictory, but
explanatory. Recanting statements contest the credibility of
the original statements, presenting a different version of the
facts or offering reasons why the government’s evidence
should not be believed. Reliable evidence that the
                MUNOZ SANTOS V. THOMAS                     33

government’s evidence was obtained by torture or coercion,
however, goes to the competence of the government’s
evidence.

    The Supreme Court has long held that the Due Process
Clause of the Fifth and Fourteenth Amendments bars the
admission of coerced confessions. “The Constitution of the
United States stands as a bar against the conviction of any
individual in an American court by means of a coerced
confession.” Ashcraft v. Tennessee, 322 U.S. 143, 155
(1944). As the Court explained in Brown v. Mississippi, “trial
. . . is a mere pretense where the state authorities have
contrived a conviction resting solely upon confessions
obtained by violence . . . and the use of the confessions thus
obtained as the basis for conviction and sentence [is] a clear
denial of due process.” 297 U.S. 278, 286 (1936); see
Ashcraft, 322 U.S. at 159 (Jackson, J., dissenting) (“Forced
confessions are ruled out of a fair trial.”); Ward v. Texas,
316 U.S. 547, 555 (1942) (“[T]his confession was not free
and voluntary but was the product of coercion and duress,
that petitioner was no longer able freely to admit or to deny
or to refuse to answer, and that he was willing to make any
statement that the officers wanted him to make.”); Chambers
v. Florida, 309 U.S. 227, 236–37 (1940); Palko v.
Connecticut, 302 U.S. 319, 326 (1937).

    We and other courts have sometimes explained the
inadmissibility of coerced confessions in terms of their
unreliability. See, e.g., Crowe v. County of San Diego,
608 F.3d 406, 433 (9th Cir. 2010) (“[C]oerced confessions
are legally insufficient and unreliable and thus cannot factor
into the probable cause analysis.”); Livers v. Schenck,
700 F.3d 340, 358 (8th Cir. 2012) (“No reasonable officer
could believe statements from a coerced confession could
34              MUNOZ SANTOS V. THOMAS

alone provide probable cause.”); Kin-Hong, 110 F.3d at 121
(“[A] confession obtained by duress is inherently unreliable
and would be given little weight even if the confession were
authenticated.”). But the Supreme Court has made clear that
“[t]he aim of the requirement of due process is not to exclude
presumptively false evidence but to prevent fundamental
unfairness in the use of evidence whether true or false.”
Lisenba v. California, 314 U.S. 219, 236 (1941) (emphasis
added). The Court offered an extended explanation in Lego
v. Twomey:

       [T]here may be a relationship between the
       involuntariness of a confession and its
       unreliability. But our decision [in Jackson v.
       Denno, 378 U.S. 368 (1964)] was not based in
       the slightest on the fear that juries might
       misjudge the accuracy of confessions and
       arrive at erroneous determinations of guilt or
       innocence. That case was not aimed at
       reducing the possibility of convicting innocent
       men.

           Quite the contrary, we feared that the
       reliability and truthfulness of even coerced
       confessions could impermissibly influence a
       jury’s judgment as to voluntariness. The use
       of coerced confessions, whether true or false,
       is forbidden because the method used to
       extract them offends constitutional principles.

404 U.S. 477, 484–85 (1972) (emphasis added) (footnote
omitted). “To be sure, confessions cruelly extorted may be
and have been, to an unascertained extent, found to be
untrustworthy. But the constitutional principle of excluding
                  MUNOZ SANTOS V. THOMAS                          35

confessions that are not voluntary does not rest on this
consideration.” Rogers v. Richmond, 365 U.S. 534, 541
(1961); see also United States v. Preston, 751 F.3d 1008,
1017–18 (9th Cir. 2014) (en banc).

    The Court’s clarity on this point gives us a different
perspective on Munoz’s claim that the principal evidence
against him was obtained through coercion that may have
amounted to torture.6 His claims of coerced testimony are
independent of the truthfulness of the testimony. It is
irrelevant whether Rosas’s and Hurtado’s statements about
their involvement in the kidnapping are true; we do not care
if they have indicia of reliability or whether they are
corroborated by other evidence. If they were obtained by
coercion in violation of the principles in the Due Process
Clause of the Fifth Amendment, the statements are not
competent and cannot support probable cause. In the
language of the extradition cases, such statements are not
“contradictory” because the truthfulness of the statements is
not the issue. The fact of coercion is “explanatory” because,
as the district court stated, it “addresses the circumstances
under which the government’s witnesses made inculpatory
statements.” App. at 12.

   An allegation of coercion is essentially a second-order
question—a question about questions; the allegation
undermines the process by which the evidence was obtained,


   6
      Because the Due Process Clause prohibits the use of coerced
statements, including those obtained by torture, we need not address
whether the Convention Against Torture would also prohibit the use in
extradition proceedings of statements obtained under torture. See
Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, art. 15, Dec. 10, 1984, 1465 U.N.T.S. 85.
36              MUNOZ SANTOS V. THOMAS

not the credibility of the evidence itself. There are a number
of examples in which we and other courts have distinguished
between the evidence and the process. This is true even
where the allegations of torture or coercion appear alongside
claims that a previously made incriminating statement is not
true—i.e., where the allegations of coercion include
recantation statements. In these cases, once the evidence of
coercion is admitted, courts weigh whether the allegations of
coercion are credible, and if so, whether probable cause still
exists once the tainted evidence is excluded from the analysis.
See, e.g., Cornejo-Barreto, 218 F.3d at 1008 (“To isolate any
possible taint the alleged torture could have on the evidence
supporting the probable cause determination, the judge
considered the sufficiency of the evidence without the
challenged confessions.”); Mainero, 164 F.3d at 1206 (noting
that the magistrate judge “carefully considered the
recantations offered . . . [and] . . . acknowledged that the
suggestion of torture is present in the record,” but upholding
the lower court’s conclusion that the torture allegations were
not sufficiently reliable to undermine probable cause); In re
Extradition of Atuar, 300 F. Supp. 2d 418, 431 (S.D. W. Va.
2003) (noting that a recantation statement is admissible “[i]f
it is evident . . . that the inculpating statement was coerced
and not made voluntarily,” in which case the court should
consider “which of the statements is more reliable in view of
the totality of the evidence”), aff’d, 156 F. App’x 555 (4th
Cir. 2005); In re Extradition of Singh, 170 F. Supp. 2d 982,
1021–23, 1028–29 (E.D. Cal. 2001) (evaluating allegations of
torture and concluding that the statements were reliable and
destroyed probable cause as to two of eleven charges), aff’d
in relevant part by Barapind, 400 F.3d 744; In re Extradition
of Contreras, 800 F. Supp. 1462, 1469 (S.D. Tex. 1992)
(“Obviously, where the indicia of reliability is on the prior
inculpating statement, then a recantation, if admitted, would
                MUNOZ SANTOS V. THOMAS                       37

not negate the existence of probable cause . . . [but] where a
prior statement is shown to be coerced and the indicia of
reliability is on the recantation, then the subsequent statement
negating the existence of probable cause is germane.”); Gill
v. Imundi, 747 F. Supp. 1028, 1043–47 (S.D.N.Y. 1990)
(granting writ of habeas corpus because new extradition
hearing was required in light of a recent ruling by an Indian
court that the confession on which probable cause was based
had been coerced); cf. Hoxha, 465 F.3d at 561 (holding that
the district court did not err in excluding recantation
statements, some of which included allegations of torture,
because other competent evidence supported probable cause).

    In sum, we have treated allegations of torture or coercion
differently from a recantation statement, even where the
allegations of coercion are made in conjunction with a claim
that a previous incriminating statement was false. Contrary
to what the district court and the extradition court concluded
here, it is possible to separate the two inquiries. Indeed, to
hold otherwise would create an odd rule in which allegations
of coercion would only be admissible when the witness
admits that the incriminating statements were true. This
makes little sense, because the question of whether a
recantation statement is credible or not is irrelevant to the
question of whether the incriminating statement—recanted or
not—was obtained under coercion, i.e., is competent
evidence. We conclude that evidence that a statement was
obtained under torture or other coercion constitutes
“explanatory” evidence generally admissible in an extradition
proceeding. An extradition court may properly consider
evidence of torture or coercion in considering the competency
of the government’s evidence, even when the claim of
coercion is intertwined with a recantation.
38                MUNOZ SANTOS V. THOMAS

    Our decision in Barapind supports our conclusion. We
observed in that case that the extradition court had conducted
“a careful, incident-by-incident analysis as to whether there
was impropriety on the part of the Indian government” in
obtaining the statements on which probable cause rested.
Barapind, 400 F.3d at 748. On two of the eleven charges
brought against the petitioner, the extradition court found that
allegations of torture undermined probable cause. With
respect to one of the charges, the single witness alleged that
his previous incriminating statement was involuntarily
obtained and that he had never identified Barapind or the
other alleged assailants in the case. Extradition of Singh,
170 F. Supp. 2d at 1021–22. India declined to challenge the
witness’s explanation.7 The extradition court weighed the
credibility of this statement and concluded that, under the
totality of the circumstances, the later affidavit “destroy[ed]
the competence of the evidence and obliterate[d] probable
cause” for the charge. Id. at 1023. On the second charge,
India had submitted the confession of a co-conspirator, who
was later killed. Barapind submitted affidavits from three
witnesses who stated that the confession had been obtained
by torture while the co-conspirator was in police custody.
India apparently did not dispute this evidence, and the court
again concluded that the three witness statements alleging
torture were reliable and the confession should be excluded.
Id. at 1028–29.

   The portion of our decision in Barapind that appears to
have presented a stumbling block for both the extradition
court and the district court here involved a different charge


  7
    Belying the dissent’s assertion that “[f]oreign governments seeking
extradition are unlikely to let allegations of torture lie unanswered.”
Dissenting Op. at 71.
                   MUNOZ SANTOS V. THOMAS                            39

based on the inculpatory affidavit of Makhan Ram. Barapind
offered a second affidavit from Ram in which Ram claimed
that police had forced him to sign blank pieces of paper, on
which statements incriminating Barapind were later written.
Ram said his statement implicating Barapind was a
“falsification.” Id. at 1024; see also Barapind, 400 F.3d at
749–50. The extradition court analyzed this statement and
factors going to its reliability, and ultimately concluded that,
under the circumstances, the court could not determine Ram’s
credibility. Accordingly, the extradition court concluded that
Ram’s statement did not undermine probable cause.
Extradition of Singh, 170 F. Supp. 2d at 1024–25. We
affirmed, finding that Ram’s statement constituted
“conflicting evidence,” because its credibility could not be
determined without a trial, and that it would have been
improper for the extradition court to engage in the kind of
review that would have been necessary to determine the
statement’s credibility. Barapind, 400 F.3d at 749–50.8

    The extradition court and the district court here relied on
this section of Barapind in concluding that Rosas’s and
Hurtado’s statements alleging coercion were inadmissible
evidence. But what the extradition court did here is different
from what the extradition court did in Barapind. In
Barapind, the extradition court first considered the
allegations of coercion, before concluding that it could not
determine their reliability without exceeding the scope of its
review. Here, however, the extradition court refused to
consider Rosas’s and Hurtado’s statements in the first


 8
    Our extended discussion of Barapind rebuts the dissent’s unfounded
claim that we have “recant[ed]” that decision. Dissenting Op. at 64. Far
from it: we have carefully explained why our decision here follows from
our nuanced decision in Barapind.
40              MUNOZ SANTOS V. THOMAS

instance. This was error. A petitioner in an extradition
proceeding has the right to introduce evidence that “explains
away” or “obliterates” probable cause, and credible evidence
that a statement was obtained under coercion does just that by
undermining the competence of the government’s evidence.

    The dissent argues that the government’s evidence need
only be properly authenticated, as required under 18 U.S.C.
§ 3190, to be admissible in an extradition proceeding,
seeming to suggest that admissibility necessarily renders the
government’s evidence sufficient to satisfy probable cause.
Dissenting Op. at 61–64. Such a suggestion conflates the
admissibility standard with the standard required to satisfy
probable cause. Simply because evidence has been
authenticated does not mean any evidence the government
submits is sufficient to satisfy probable cause. Were that the
case, the judiciary’s role in the extradition process would be
meaningless. Our role here is indeed a limited one, but
“[t]his is not to say that a judge . . . [in] an extradition
proceeding is expected to wield a rubber stamp.” Skaftouros
v. United States, 667 F.3d 144, 158 (2d Cir. 2011). Rather,
our “function in an extradition hearing is . . . to ensure that
our judicial standard of probable cause is met by the
Requesting Nation.” United States v. Linson, 88 F. Supp. 2d
1123, 1128 (D. Guam 2000). As we have made clear, the
manner in which evidence used to support probable cause
was obtained is relevant in determining whether the probable
cause standard has indeed been satisfied. Our case law,
including Supreme Court case law that the dissent largely
ignores, does not allow us to leave this determination to the
Secretary of State—or, for that matter, the Mexican
courts—under principles of deference to the executive or
international comity. Dissenting Op. at 74. The probable
                    MUNOZ SANTOS V. THOMAS                                41

cause determination has been placed squarely in the
judiciary’s hands and is ours alone.9

    We wish to be clear, however, that the scope of our
holding here is limited, and that our decision should not be
taken as a license to engage in mini-trials on the question of
coercion or torture. The extradition court does not have to
determine which party’s evidence represents the truth where


   9
      Nor does the rule of non-inquiry apply here: the long-standing
principle that courts should refrain from inquiring into how an individual
will be treated by a foreign state if extradited. In other words, the rule
bars the judiciary from preventing the surrender of a fugitive on the basis
of humanitarian considerations once extradition has been certified,
reserving that decision to the Secretary of State. See, e.g., Hoxha,
465 F.3d at 563 (“[H]umanitarian considerations are within the purview
of the executive branch and generally should not be addressed by the
courts in deciding whether a petitioner is extraditable.”); Prasoprat v.
Benov, 421 F.3d 1009, 1116 (9th Cir. 2005) (“We have long adhered to
the rule of non-inquiry—that it is the role of the Secretary of State, not the
courts, to determine whether extradition should be denied on humanitarian
grounds or on account of the treatment that the fugitive is likely to receive
upon his return to the requesting state.”); Blaxland, 323 F.3d at 1208
(“While potential abuses in the requesting country rising to the level of
torture are reviewable by American courts . . . judges generally refrain
from examining the penal systems of requesting nations, leaving to the
Secretary of State determinations of whether the defendant is likely to be
treated humanely.”) (quotations omitted); Mainero, 164 F.3d at 1205 n.6
(“[The so-called ‘rule of non-inquiry’ recognizes that ‘[a]n extradition
court will generally not inquire into the procedures or treatment which
await a surrendered fugitive in the requesting country.’”) (quoting
Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9th Cir.
1983)); FJC Manual at 26 (“[T]he rule of non-inquiry reserves for the
Secretary of State the task of assessing whether there are political or
humanitarian grounds to deny extradition.”). The question we address in
this case has to do with whether there is probable cause to extradite
Munoz to Mexico, not how Munoz will be treated if he is removed to
Mexico. Hence, the rule of non-inquiry is inapplicable.
42              MUNOZ SANTOS V. THOMAS

the facts are contested. Where an extradition court first
considers evidence that a statement was improperly obtained,
but concludes that it is impossible to determine the credibility
of the allegations without exceeding the scope of an
extradition court’s limited review, the court has fulfilled its
obligation—as the extradition court did in Barapind. If the
court cannot determine the credibility of the allegations (or
other evidence) once it has examined them, the inquiry ends.
Probable cause is not undermined, and the court must certify
the extradition. See 18 U.S.C. § 3184.

    The extradition court, of course, may consider other
evidence, separate from potentially tainted evidence, that will
satisfy the probable cause requirement. See, e.g., Barapind,
400 F.3d at 749–50; Mainero, 164 F.3d at 1206; cf. Hoxha,
465 F.3d at 561–62 (holding that exclusion of evidence of
coercion was proper where other competent evidence
supported probable cause). Furthermore, we note that the fact
that evidence of torture can properly be considered by the
extradition court as “explanatory” evidence does not mean
that all evidence of torture must be admitted. The extradition
court still has broad discretion to determine the admissibility
of the evidence before it. See Mainero, 164 F.3d at 1206;
Hooker, 573 F.2d at 1369; see also In re Extradition of
Sindona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978) (“The extent
of such explanatory evidence to be received is largely in the
discretion of the judge ruling on the extradition request.”).

    Our holding today is narrow: Evidence that a statement
was obtained by coercion may be treated as “explanatory”
evidence that is admissible in an extradition hearing.
                MUNOZ SANTOS V. THOMAS                      43

B. Probable Cause

    Although we have concluded that the extradition court
improperly excluded Rosas’s and Hurtado’s subsequent
statements alleging that their initial inculpatory statements
had been obtained by coercion, our inquiry is not at an end.
Our inquiry on habeas review is whether any competent
evidence supports the extradition court’s probable cause
finding. Vo, 447 F.3d at 1240; see Fernandez, 268 U.S. at
312. Evidentiary error alone is not a sufficient basis on which
to grant a writ of habeas in the extradition context. See
Collins, 259 U.S. at 316 (“It is clear that the mere wrongful
exclusion of specific pieces of evidence, however important,
does not render the detention illegal.”).

    The district court carefully considered whether, if the
court excluded Rosas’s and Hurtado’s statements, there
remained sufficient evidence to support a probable cause
finding against Munoz. It concluded that the matter was
“close,” but that there was not. App. at 17–18 n.41. We
share the district court’s doubts. Neither Castellanos’s nor
Hermosillo’s statements mention Munoz; at best they connect
Rosas to the kidnapping, but only Rosas’s and Hurtado’s
statements implicate Munoz. Without Rosas’s and Hurtado’s
statements, only Andrade’s statement that Rosas and Munoz
approached him about a “job” to extort “Beto” for two
million pesos potentially connects Munoz to the kidnapping.
This statement, however, lacks any other specifics that would
suggest the “job” was a kidnapping involving Roberto
Castellanos’s family. Standing alone, Andrade’s statement is
insufficient to support probable cause. This is not a case in
which there is overwhelming evidence available from other
sources. Nevertheless, because the question is a close one,
we think the extradition court should decide this question in
44               MUNOZ SANTOS V. THOMAS

the first instance, when it will have the opportunity to
redetermine the admissibility of Munoz’s evidence and then
consider all of the evidence together.

    The extradition court here “operated under a mistaken
understanding of what constitutes circuit law,” Barapind,
400 F.3d at 750, and took an overly restrictive view of its
authority to consider evidence that an inculpatory statement
was obtained under coercion. In light of our conclusion that
the extradition court may consider allegations of coercion,
even when they are included in a recantation statement, we
think it best to return this matter to the extradition court for
reconsideration. See, e.g., Caplan, 649 F.2d at 1343–45;
Greci v. Birknes, 527 F.2d 956, 960–61 (1st Cir. 1976);
United States ex rel. D’Amico v. Bishopp, 286 F.2d 320,
321–23 (2d Cir. 1961); Gill, 747 F. Supp. at 1046. Since this
case is here on habeas and not on direct appeal, our
mechanism for returning this case to the extradition court is
necessarily circuitous, because “the proceeding before a
committing magistrate in international extradition is not
subject to correction by appeal.” Collins I, 252 U.S. at 369.
We cannot issue or refuse the certification of extraditability;
we can only order the release of the accused if there are no
grounds for holding him, a judgment we are unwilling to
make on the present record. As a result, we will remand the
case to the district court with instructions to grant the writ of
habeas corpus unless a judge or magistrate certifies Munoz’s
extraditability within a reasonable time and after proceedings
consistent with this opinion. See Shapiro, 478 F.2d at 914;
Gill, 747 F. Supp. at 1046, 1050. “If the magistrate so
certifies, the district court shall thereupon dismiss the
petition, except it may entertain renewal thereof for adequate
cause.” Greci, 527 F.2d at 961 (following Shapiro). “This
somewhat cumbersome method of remand is needed because,
                 MUNOZ SANTOS V. THOMAS                        45

owing to the collateral nature of habeas corpus review in an
extradition proceeding, we have no direct power to vacate or
modify the extradition court’s certification.” Caplan,
649 F.2d at 1345 n.18 (citing Shapiro, 478 F.2d at 914).

    The extradition court may consider the competency and
sufficiency of the government’s evidence, exercise discretion
as to the admission of Munoz’s proffered evidence, and
consider any other evidence it deems necessary, consistent
with our opinion. See, e.g., Greci, 527 F.2d at 960–61. Our
decision does not foreclose a finding by the extradition court
that the allegations of coercion are unreliable or insufficient
to undermine probable cause or that Munoz is, in fact,
extraditable. Rather, we simply decline to make these
determinations in the first instance before the extradition
court has had a chance to do so.

                     IV. CONCLUSION

    We reverse the judgment of the district court and remand
this case to the district court with instructions to discharge the
petitioner unless, within 90 days, the extradition court
certifies Munoz’s extraditability under 18 U.S.C. § 3184 after
proceedings consistent with this opinion. If the extradition
court issues a certificate of extraditability to the Secretary of
State, the district court shall dismiss the petition, subject to
renewal for adequate cause.

    REVERSED AND REMANDED.
46   MUNOZ SANTOS V. THOMAS




          APPENDIX
1
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                MUNOZ SANTOS V. THOMAS                      47

CALLAHAN, Circuit Judge, with whom IKUTA, Circuit
Judge, joins, dissenting:

    The question in this habeas case is straight-forward:
Under the federal extradition statute, 18 U.S.C.
§§ 3181–3195, and the terms of the extradition treaty between
the United States (“Government”) and Mexico, did the
extradition judge err in excluding evidence that contradicts
the Mexican government’s evidence of probable cause to
believe that Jose Luis Munoz Santos (“petitioner”), a fugitive
of Mexico, is guilty of kidnapping in Mexico? The majority
answers with a resounding “yes,” overturning more than a
century’s worth of extradition jurisprudence. It first reviews
the extradition court’s decision for technical error, exceeding
the scope of judicial review under well-established Supreme
Court precedent. Second, despite its protestations to the
contrary, the majority risks converting a probable cause
hearing into a mini-trial with all the evidentiary trappings,
again contrary to Supreme Court precedent. Moreover, by
requiring extradition judges to consider and weigh evidence
that a fugitive raises in defense of the criminal charge he
faces abroad, the reliability of the foreign nation’s evidence
is put to the test on American soil. Under the governing
treaty, however, and consistent with controlling precedent,
this assessment is reserved for the Mexican judicial
authorities, not U.S. courts.

     Extradition judges are not judicial Transformers; they are
not trial judges in disguise. Congress has never deputized
extradition judges for this purpose, nor has it vested Article
III judges with the power to expand the limited role these
judicial officers serve in the realm of foreign relations. The
majority’s approach violates the terms of the governing treaty
and the statutory framework established by Congress. The
48                 MUNOZ SANTOS V. THOMAS

approach also interferes with the diplomatic relationship that
the Executive and Legislative branches have established with
Mexico. Because the Judiciary is not authorized to drive a
wedge in that relationship, I dissent.

                         I.   Background

    Mexican authorities have charged the petitioner with
kidnapping Dignora Hermosillo Garcia (“Hermosillo”) and
her four- and six-year-old daughters for ransom in August
2005.1 Kidnapping is an extraditable offense under the
extradition treaty between the United States and Mexico.
Extradition Treaty Between the United States of America and
the United Mexican States, Mex.-U.S., May 4, 1978, 31
U.S.T. 5059 [hereinafter “Extradition Treaty” or “Treaty”].2
On August 15, 2006, Mexico requested the petitioner’s
extradition by formal request, and a United States Magistrate
Judge of the Central District of California held a hearing to
determine his extraditability. On behalf of Mexico, the
United States submitted witness statements from the victims
and confessions from the petitioner’s co-conspirators:

         (1) Hermosillo described the kidnapping and
         identified Fausto Librado Rosas Alfaro
         (“Rosas”) as the armed, masked man who
         abducted her and her daughters from their



     1
     Hermosillo’s younger daughter died during the course of the
kidnapping. Mexico initially charged the petitioner with kidnapping and
homicide, but the charge was ultimately reduced to kidnapping alone.
 2
   The Treaty was signed and ratified by President Jimmy Carter with the
consent of the Senate, and entered into force on January 25, 1980.
               MUNOZ SANTOS V. THOMAS                   49

       home and tied them up (August 29, 2005 and
       November 7, 2005);

       (2)       Roberto Castellanos Meza
       (“Castellanos”), Hermosillo’s husband and the
       father of the abducted children, described
       events that transpired before and after the
       kidnapping (August 21, 2005);

       (3) Benigno Andrade Hernandez (“Andrade”)
       voluntarily appeared before a prosecutor and
       incriminated himself, Munoz and Rosas in a
       sworn statement, and identified both in
       photographs (January 12, 2006);

       (4)      Jesus Servando Hurtado Osuna
       (“Hurtado”), a co-conspirator, received
       assistance from a public defender and
       incriminated himself, Munoz, Rosas and two
       other individuals, admitting their involvement
       both in planning and executing the kidnapping
       (March 14, 2006); and

       (5) Rosas, a co-conspirator, appeared before
       a criminal court judge and implicated himself,
       Hurtado and Munoz, and corroborated
       Hurtado’s version of events (signed March 27,
       2006).

In re Extradition of Santos, 795 F. Supp. 2d 966, 972–79
(C.D. Cal. 2011).
50                  MUNOZ SANTOS V. THOMAS

    The statements were made to Mexican law enforcement
or to the Mexican judiciary and properly authenticated, a fact
the petitioner does not contest. Specifically,

         [t]hat evidence was contained in various
         filings accompanied by certificates with
         ribbons and seals signed by the then-current
         principal consular officer, the “Minister
         Counselor of Consular Affairs” of the United
         States at Mexico City, Mexico, attesting that
         the annexed documents were “properly and
         legally authenticated so as to entitle them to
         be received in evidence for similar purposes
         by the tribunals of the United Mexican
         States.”

Id. at 971 (record citations omitted).

    Based on the Government’s presentation, the extradition
judge found probable cause to believe that the petitioner was
guilty of the alleged kidnapping and, accordingly, certified
his extradition. In reaching this conclusion, the judge
excluded statements from the co-conspirators recanting their
prior confessions, which they alleged were obtained through
torture.3 The Mexican government disputed these allegations



     3
     It appears that the extradition judge also excluded “voluminous
additional evidence” offered to “enhance the reliability” of the
recantations and allegations of torture and coercion. Extradition of Santos,
795 F. Supp. 2d at 988, 990 (“Munoz’s evidence offered to show that the
inculpatory statements relied on by the government to establish probable
cause were recanted and were procured through torture or coercion is
inadmissible and has not been considered in determining probable
cause.”). As stated by that court:
                   MUNOZ SANTOS V. THOMAS                             51

with an affidavit from a Mexican prosecutor attesting to
Hurtado’s and Rosas’s detention in Mexico, the failure of
either conspirator to file a formal complaint with Mexican
authorities that they had been tortured, and the results of
medical and psychological examinations conducted of both
individuals on March 21–22, 2006, which revealed no
evidence of bodily injury or mental disorder.4

                    II.    Standard of Review

   “[A] habeas petition is the only available avenue to
challenge an extradition order,” and the scope of review is



         The additional evidence includes, but is not limited to:
         (1) additional declarations by Munoz, Hurtado, and
         other witnesses who had some connection to Munoz or
         his co-defendants in the criminal case in Mexico;
         (2) newspaper articles identifying Hermosillo’s
         husband’s brother as a suspected drug dealer who
         reportedly attacked Mexican soldiers; (3) copies of
         reports of forensic medical examinations of Munoz;
         (4) bank records, hotel records, Western Union records,
         and similar evidence offered to establish alibi defenses
         by Munoz or his co-defendants; (5) Mexican court
         documents showing that an appeals court reversed the
         kidnapping conviction of Lopez Mendivil, acquitted
         her, and ordered her immediate release from custody;
         and (6) reports on human rights practices in Mexico
         prepared by the U.S. Department of State, Bureau of
         Democracy, Rights, and Labor.

Id. at 988.
 4
   Curiously, in their initial recantations, both Hurtado and Rosas stated
that they were tortured sometime between March 19 and March 22, 2006,
the precise time-frame during which they were medically examined. They
adjusted this time-line in later amendments to their statements.
52                  MUNOZ SANTOS V. THOMAS

severely limited. Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir.
2006); see 28 U.S.C. § 2241. An error in declining to
consider evidence at an extradition hearing is not a basis for
habeas relief. Long ago Justice Brandeis, speaking on behalf
of a unanimous Supreme Court, made it abundantly clear that
the “mere wrongful exclusion of specific pieces of evidence,
however important, does not render [an extradition] detention
illegal.” Collins v. Loisel, 259 U.S. 309, 316 (1922); see
Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (Holmes, J.);
Collins v. Miller, 252 U.S. 364, 369 (1920) (Brandeis, J.);
Charlton v. Kelly, 229 U.S. 447, 461 (1913). When the
magistrate in Charlton excluded the fugitive’s “impressive
evidence of insanity,” for example, the Supreme Court
rejected the fugitive’s claim of reversible error because the
alleged error was beyond the scope of habeas relief. 229 U.S.
at 457–58, 461–62.

    The Supreme Court has not created any exception to this
rule. Habeas review is limited to “[1] whether the magistrate
had jurisdiction, [2] whether the offense charged is within the
treaty and, [3] by a somewhat liberal extension, whether there
was any evidence warranting the finding that there was
reasonable ground to believe the accused guilty.” Fernandez,
268 U.S. at 312 (emphasis added). The third factor—the only
factor at issue here—requires the court to determine
“whether, under the construction of the act of [C]ongress and
the treaty entered into between this country and Mexico, there
was legal evidence before the [extradition judge] to justify
him in exercising his power to commit the person accused to
custody to await the requisition of the Mexican government.”5


 5
   At the extradition hearing, counsel for the petitioner stipulated that all
elements, except the element of probable cause, had been satisfied. Id. at
970.
                 MUNOZ SANTOS V. THOMAS                        53

Benson v. McMahon, 127 U.S. 457, 463 (1888) (emphasis
added).

    This express limitation reflects the principle that the
existence of foreign criminal proceedings, which we must
accept as adequate for purposes of extradition, will give the
fugitive ample process to develop his claims of innocence.
See Fernandez, 268 U.S. at 312; Glucksman v. Henkel,
221 U.S. 508, 512 (1911) (Holmes, J.). Unlike a habeas
petition from a criminal conviction, a habeas petition in the
extradition context is not the end of the line; rather, it is only
a preliminary step designed to allow the criminal process to
continue and be completed in the country with jurisdiction
over the charged crime.

    The majority, in essence, disregards this longstanding
precedent. Although it acknowledges that a judge sitting as
an extradition court must “consider whether the evidence is
‘sufficient to sustain the charge under the provisions of the
proper treaty or convention,’” Maj. Op. 28 (quoting
18 U.S.C. § 3184), this acknowledgment is just a token
reference to 18 U.S.C. § 3184. That’s the last time either the
Treaty or the statute appears in the opinion. The majority’s
approach departs from the example set by the Supreme Court
confining its review of an extradition order to strict
applications of the extradition statute and the relevant treaty.
In setting its preferred standard of review, the majority loses
sight of the paramount inquiry of any extradition application:
whether probable cause exists to believe that the fugitive
committed the crimes charged in the requesting country. The
majority’s approach allows it to make determinations
reserved for the Mexican legal system. This is a clear
violation of principles of international comity and separation
of powers.
54               MUNOZ SANTOS V. THOMAS

               III.   Extradition Framework

    Courts play a narrowly defined role in the extradition
process. The process begins with the decision of the political
branches to enter into an extradition treaty, a decision that
rests on those branches’ determination that the foreign
country’s legal and penal system is one into which the United
States is willing to extradite fugitives. By statute, courts play
an important role in determining whether an individual is
eligible to be extradited under the terms of the applicable
treaty, but that role is limited, as courts have long recognized.

    For example, an extradition judge may not deny
extradition on the ground that the requesting country will not
provide a fugitive the procedures and rights available in an
American criminal court, even if those rights are guaranteed
under our Federal Constitution. Neely v. Henkel, 180 U.S.
109, 122–23 (1901). Nor may a judge entertain challenges
that a requesting country has not followed its own laws in
bringing a criminal case or extradition request. See
Skaftouros v. United States, 667 F.3d 144, 155–56 (2d Cir.
2011) (principles of international comity and judicial modesty
restrain extradition courts from deciding most questions of
foreign law and procedure). Unanimously, in Munaf v.
Green, the Supreme Court even refused to review claims that
a fugitive would be subject to torture or other inhumane
treatment if surrendered. 553 U.S. 674, 700–02 (2008)
(Roberts, C. J.); see Trinidad y Garcia v. Thomas, 683 F.3d
952, 978 (9th Cir. 2012) (“[C]ourts in this country refrain
from examining the penal systems of requesting nations,
                    MUNOZ SANTOS V. THOMAS                               55

leaving to the Secretary of State determinations of whether
the defendant is likely to be treated humanely.”).6

    To the extent that the alleged denial of constitutional
rights should affect the willingness of the United States to
extradite, the Supreme Court has held that “it is for the
political branches, not the Judiciary, to assess practices in
foreign countries and to determine national policy in light of
those assessments.” Munaf, 553 U.S. at 700–01. In
particular, the Court has emphasized:

         The Judiciary is not suited to second-guess
         such determinations—determinations that
         would require federal courts to pass judgment
         on foreign justice systems and undermine the
         Government’s ability to speak with one voice
         in this area. See The Federalist No. 42, p. 279
         (J. Cooke ed. 1961) (J. Madison) (“If we are
         to be one nation in any respect, it clearly
         ought to be in respect to other nations[.]”). In
         contrast, the political branches are well
         situated to consider sensitive foreign policy
         issues, such as whether there is a serious


 6
   In Munaf, the Supreme Court noted that “the Solicitor General state[d]
that it is the policy of the United States not to transfer an individual in
circumstances where torture is likely to result.” 553 U.S. at 702. Although
the prospect of future torture is not the subject of this appeal, it is worth
noting that the petitioner raised this claim on his own behalf to the
extradition court. There, he argued that his extradition should be denied
under the United Nations Convention Against Torture “‘[g]iven the record
of torture and death threats’ in this case,” and because “‘it is extremely
likely that [he] and his family will be subjected to grievous harm’ in the
form of torture, threats, and even assassination if he were returned to
Mexico.” Extradition of Santos, 795 F. Supp. 2d at 990.
56              MUNOZ SANTOS V. THOMAS

       prospect of torture at the hands of an ally, and
       what to do about it if there is.

Id. at 702; see Jhirad v. Ferrandina, 536 F.2d 478, 484–85
(2d Cir. 1976) (“It is not the business of our courts to assume
the responsibility for supervising the integrity of the judicial
system of another sovereign nation. Such an assumption
would directly conflict with the principle of comity upon
which extradition is based.” (citing Factor v. Laubenheimer,
290 U.S. 276 (1933)). In effect, U.S. courts “are bound by
the existence of an extradition treaty to assume that the
[foreign] trial will be fair.” Glucksman, 221 U.S. at 512.
Here, the Treaty requires us to accept that Mexico’s judiciary
will fairly evaluate the proffered evidence of torture should
the petitioner choose to raise such evidence in defense of the
kidnapping charge he faces there.

     Because the political branches have plenary authority to
accept the fairness of a foreign country’s legal system, it
makes sense that the final decision to extradite rests with
them. As defined by Congress, the Executive remains
primarily responsible for extradition while the extradition
judge is assigned the limited duty of determining the
sufficiency of the request under the applicable treaty
provisions. 18 U.S.C. § 3184; see Martin v. Warden,
993 F.2d 824, 828–29 (11th Cir. 1993); Lopez-Smith v. Hood,
121 F.3d 1322, 1326 (9th Cir. 1997) (“Extradition is a matter
of foreign policy entirely within the discretion of the
executive branch, except to the extent that [a] statute
interposes a judicial function.”). That judicial function is
carried out by conducting a hearing pursuant to § 3184 and,
if the request is supported by sufficient evidence, certifying
the foreign country’s request to the Secretary of State. The
Secretary of State is not required to grant extradition but may,
                 MUNOZ SANTOS V. THOMAS                        57

in his or her discretion, decline extradition for reasons that are
not available to the courts or grant extradition subject to
conditions. See 18 U.S.C. §§ 3184, 3186. This division of
responsibility between the courts and the Executive branch
reflects “institutional competence rationales and our
constitutional structure, which places primary responsibility
for foreign affairs in the executive branch.” United States v.
Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997).

              IV.    The Extradition Hearing

    The extradition process reflects these fundamental
differences in institutional competence and separation of
powers principles. In Benson, the Supreme Court stated that
an extradition hearing is a limited affair akin to a preliminary
hearing to determine whether to hold an accused to answer
for the commission of a crime. 127 U.S. at 463. “That
explanation . . . is no less persuasive today.” Ward v.
Rutherford, 921 F.2d 286, 288 (D.C. Cir. 1990) (Ginsburg, J.)
(discussing Benson and citing Hooker v. Klein, 573 F.2d
1360, 1367 (9th Cir. 1978), cert. denied, 439 U.S. 932
(1978)). The Supreme Court has also likened an extradition
proceeding to a grand jury investigation, where the
procedural rights of the accused are limited. See Bingham v.
Bradley, 241 U.S. 511, 517 (1916) (no right to cross-examine
government affiants at extradition hearings); Charlton,
229 U.S. at 459–62 (analogizing extradition proceedings to
grand jury proceedings). We embraced this understanding in
Barapind v. Enomoto when we held that an extraditee has no
right to introduce contradictory or impeaching evidence.
400 F.3d 744, 750 (9th Cir. 2005) (en banc). Because an
extradition hearing is not a plenary trial at which guilt or
innocence is decided, the Supreme Court has derided attempts
to import trial-type procedural requirements into the
58               MUNOZ SANTOS V. THOMAS

proceeding. Fernandez, 268 U.S. at 312; Glucksman,
221 U.S. at 512 (“It is common in extradition cases to attempt
to bring to bear all the factitious niceties of a criminal trial at
common law. But it is a waste of time.”).

A. Role of the Extradition Judge

    We have previously stated that extradition judges
“conduct a circumscribed inquiry in extradition cases.”
Blaxland v. Commonwealth Dir. of Pub. Prosecutions,
323 F.3d 1198, 1208 (9th Cir. 2003). Their role is defined by
statute as well as by the relevant extradition treaty. 18 U.S.C.
§§ 3181–3195; see id. § 3181(a) (“The provisions of this
chapter relating to the surrender of persons who have
committed crimes in foreign countries shall continue in force
only during the existence of any treaty of extradition with
such foreign government.”). The extradition judge is
authorized only to “determine whether there is competent
evidence to justify holding the accused to await trial.”
Collins, 259 U.S. at 316. (As explained below, “competent
evidence” is simply any evidence that has been certified in
accordance with the extradition statute.) In making this
assessment, the extradition judge does not weigh conflicting
evidence presented by the fugitive or make credibility
determinations based on that evidence. Barapind, 400 F.3d
at 749–50. To the extent that an extradition judge is
authorized to assess the credibility and reliability of the
Government’s evidence, he or she does so based on an
examination of that evidence under the terms of the
governing treaty. Upon a showing of sufficiency, the
inquiring magistrate judge is required to certify the fugitive
as extraditable to the Secretary of State and to issue a warrant.
18 U.S.C. § 3184.
                MUNOZ SANTOS V. THOMAS                       59

B. Probable Cause Standard of Proof

    The Government (on behalf of the requesting country)
bears the burden of submitting evidence that is “sufficient to
sustain the charge [of criminality] under the provisions of the
proper treaty or convention.” 18 U.S.C. § 3184. Extradition
treaties, unlike criminal statutes, “should be liberally
construed as to effect the apparent intention of the
parties”—i.e., in favor of enforcement—as they are brokered
“in the interest of justice and friendly relationships.” Factor,
290 U.S. at 293, 298. Courts are bound by this principle to
“interpret extradition treaties to produce reciprocity between,
and expanded rights on behalf of, the signatories.” Kin-Hong,
110 F.3d at 110 (quoting In re Extradition of Howard,
996 F.3d 1320, 1330–31 (1st Cir. 1993)); accord Factor,
290 U.S. at 293–94.

    Here, the Treaty requires that evidence be “sufficient,
according to [United States] laws . . . to justify the committal
for trial of the person sought.” Treaty, art. 3. The Treaty
further provides that

       [w]hen the request for extradition relates to a
       person who has not yet been convicted, it
       shall be accompanied by . . . [e]vidence
       which, in accordance with the laws of the
       [United States], would justify apprehension
       and commitment for trial of the person sought
       if the offense had been committed there.

Id., art. 10(3)(b) (emphasis added).

    The standard of proof set forth in § 3190 and the Treaty
allows for nothing more than an inquiry into whether
60              MUNOZ SANTOS V. THOMAS

probable cause exists to believe that the fugitive committed
the alleged crimes. Probable cause exists when, under the
“totality of the circumstances known to the [Government], a
prudent person [knowing those facts] would have concluded
that there was a fair probability that [the accused] had
committed a crime.” United States v. Smith, 790 F.2d 789,
792 (9th Cir. 1986); see Brinegar v. United States, 338 U.S.
160, 175–76 (1949).

   In the context of evaluating the sufficiency of a criminal
complaint, the Supreme Court framed the probable cause
inquiry as simply: “What makes you think that the defendant
committed the offense charged?” Jaben v. United States,
381 U.S. 214, 224 (1965). This question, the Court
explained,

       does not reflect a requirement that the
       Commissioner ignore the credibility of the
       complaining witness. There is a difference
       between disbelieving the affiant and requiring
       him to indicate some basis for his allegations.
       Obviously any reliance upon factual
       allegations necessarily entails some degree of
       reliance upon the credibility of the source.
       Nor does it indicate that each factual
       allegation which the affiant puts forth must be
       independently documented, or that each and
       every fact which contributed to his
       conclusions be spelled out in the complaint.
       It simply requires that enough information be
       presented to the Commissioner to enable him
       to make the judgment that the charges are not
       capricious and are sufficiently supported to
                MUNOZ SANTOS V. THOMAS                       61

        justify bringing into play the further steps of
        the criminal process.

Id. at 224–25 (internal citations omitted).

    Here, the Government has answered the question—“What
makes you think that the fugitive committed the offense
charged?”—with affidavits from Hermosillo and her husband
(Castellanos), from whom the ransom was extorted;
authenticated confessions from Rosas and Hurtado, two co-
conspirators to the kidnapping who fingered the petitioner as
the mastermind behind the abduction plan; an affidavit from
Andrade, who identified the petitioner and Rosas in
photographs as the men who approached him approximately
one month before the kidnapping to ask if he was interested
in “pulling a ‘job’ . . . . to ask ‘Beto’ [Hermosillo’s husband]
for two million pesos”; and an affidavit from a prosecutor
from Mexico rebutting the allegations of torture. Extradition
of Santos, 795 F. Supp.2d at 972–79 & n.8.

    The extradition court was not simply authorized to admit
this evidence; it was obligated to do so under the Treaty.
Treaty, art. 10(6)(b) (“The documents which, according to
this Article, shall accompany the request for extradition, shall
be received in evidence when . . . they are certified by the
principle diplomatic or consular officer of the Untied States
in Mexico.”). It’s hard to imagine what more the
Government would have to submit to satisfy the low
threshold of probable cause.

C. Admissibility of Evidence

   “The special and limited nature of extradition hearings is
manifested in a more lenient standard for admissibility of
62                 MUNOZ SANTOS V. THOMAS

evidence.” Kin-Hong, 110 F.3d at 120. The Federal Rules of
Criminal Procedure and the Federal Rules of Evidence do not
apply in the extradition context. Fed. R. Crim. P. 1(a)(5)
(rules are not applicable to the “extradition and rendition of
a fugitive”); Fed. R. Evid. 1101(d)(3) (same). Admissibility
is instead controlled by § 3190.7 Under that statute,

         [d]epositions, warrants, or other papers or
         copies thereof offered in evidence upon the
         hearing of any extradition case shall be
         received and admitted as evidence on such
         hearing for all the purposes of such hearing if
         they shall be properly and legally
         authenticated so as to entitle them to be
         received for similar purposes by the tribunals
         of the foreign country from which the accused
         party shall have escaped, and the certificate of
         the principal diplomatic or consular officer of
         the United States resident in such foreign
         country shall be proof that the same, so



 7
  Citing the predecessor statute to 18 U.S.C. § 3190, which mandates the
admission of a requesting country’s supporting documents if they have
been certified through diplomatic channels, the Supreme Court in
Bingham explained:

         It is one of the objects of § 5170 [today, § 3190] to
         obviate the necessity of confronting the accused with
         the witnesses against him; and a construction of this
         section, or of the treaty, that would require the
         demanding government to send its citizens to another
         country to institute legal proceedings, would defeat the
         whole object of the treaty.

241 U.S. at 517; see Yordi v. Nolte, 215 U.S. 227, 231 (1909).
                MUNOZ SANTOS V. THOMAS                     63

       offered, are authenticated in the manner
       required.

18 U.S.C. § 3190. Correspondingly, the Treaty provides that
documents submitted in support of extradition “shall be
received in evidence when . . . certified by the principle
diplomatic or consular officer of the United States in
Mexico.” Treaty, art. 10(6)(b).

    Unless the relevant treaty provides otherwise, the only
requirement for admitting evidence is that the evidence be
authenticated. Manta v. Chertoff, 518 F.3d 1134, 1146 (9th
Cir. 2008); see Man-Seok Choe v. Torres, 525 F.3d 733, 740
(9th Cir. 2008); Oen Yin Choy v. Robinson, 858 F.2d 1400,
1406 (9th Cir. 1988) (“We have indicated that authentication
is the only requirement for admissibility of evidence under
general United States extradition law.” (citing Emami v.
United States Dist. Court for the N. Dist. of Cal., 834 F.2d
1444, 1451 (9th Cir. 1987)). Thus, “competent evidence to
justify holding the accused to await trial,” Collins, 259 U.S.
at 316, is simply any evidence that has been certified in
accordance with the extradition statute. The documents
submitted by the Government comport with the requirements
of § 3190. It bears repeating that the petitioner does not
challenge the authentication of any of the Government’s
documentation. The extradition judge was obligated to
receive this evidence and assess whether the evidence
adequately established probable cause. Upon receiving and
examining the Government’s authenticated evidence, the
64                 MUNOZ SANTOS V. THOMAS

magistrate determined that probable cause was established to
hold the petitioner.8

    Until today, we have rejected invitations to impose any
additional requirement for admitting documentary evidence
in an extradition proceeding. Barapind, 400 F.3d at 748. In
Barapind, we stated:

         [I]t is undisputed that the evidence presented
         against Barapind was properly authenticated
         pursuant to section 3190, and the Treaty itself
         contains no supplementary authentication
         requirements. We therefore reject Barapind’s
         claim that the extradition court erred in
         relying upon the authenticated documentary
         evidence submitted by India.

Id. Today, the majority recants these principled statements.
The majority now requires that authenticated evidence must
also satisfy the Fifth Amendment’s Due Process Clause. Maj.
Op. 33–35. The majority’s rationale conflicts with Supreme
Court precedent holding that the right to extradite arises
from—and only from—the treaty that created it. Factor,
290 U.S. at 287.




 8
    Although authenticated evidence is admissible, admissibility by itself
is not the test for probable cause. In cases where the Government’s
evidence has been authenticated and admitted but nevertheless fails to
satisfy probable cause, an extradition judge may not certify extradition.
This is not one of those cases, however.
                MUNOZ SANTOS V. THOMAS                      65

D. Limited Rights of the Fugitive

    Because of the limited purpose of an extradition hearing
and the comity owed other nations under an extradition treaty,
a fugitive’s ability to present evidence is limited. In Loisel,
the Supreme Court held that a fugitive does not have a broad
right to present evidence at an extradition hearing. 259 U.S.
at 315–17. The Court reasoned:

       If [the right to introduce evidence in defense
       of the charged crime] were recognized as the
       legal right of the accused in extradition
       proceedings, it would give him the option of
       insisting upon a full hearing and trial of his
       case here; and that might compel the
       demanding government to produce all its
       evidence here, both direct and rebutting, in
       order to meet the defense thus gathered from
       every quarter. The result would be that the
       foreign government though entitled by the
       terms of the treaty to the extradition of the
       accused for the purpose of a trial where the
       crime was committed, would be compelled to
       go into a full trial on the merits in a foreign
       country, under all the disadvantages of such a
       situation, and could not obtain extradition
       until after it had procured a conviction of the
       accused upon a full and substantial trial here.
       This would be in plain contravention of the
       intent and meaning of the extradition treaties.

Id. at 316 (quoting In re Wadge, 15 F. 864, 866 (S.D.N.Y.
1883)); see also Charlton, 229 U.S. at 461. The Court further
explained that evidence offered to “contradict” the
66              MUNOZ SANTOS V. THOMAS

government’s evidence was not properly admitted under this
standard. Collins, 259 U.S. at 316.

     For that reason, evidence that “goes to guilt or innocence
or tends to contradict the requesting party’s case”—i.e.,
evidence that would lead to a material dispute over the
truthfulness of proffered evidence—has been held to be
inadmissible at an extradition hearing. Hooker, 573 F.2d at
1368; Barapind, 400 F.3d at 749–50; Desmond v. Eggers,
18 F.2d 503, 505 (9th Cir. 1927) (“All of the authorities agree
. . . that matters which are only a defense to a trial on the
merits are not admissible.”); In re Extradition of Zhenly Ye
Gon, 613 F. Supp. 2d 92, 102 (D.D.C. 2009).

    While a fugitive may introduce evidence explaining the
evidence submitted by the requesting country, Barapind,
400 F.3d at 749, “explanatory” evidence has a narrow
meaning in an extradition proceeding. “Explanatory”
evidence is undisputed evidence that essentially accepts the
substance of the requesting country’s evidence as true, but
casts the requesting country’s evidence in a light that,
although innocent, negates or “obliterates” the inference of
guilt. See id.; see also Extradition of Glantz, No. 94 Crim.
Misc. 1 P. 25, 1995 WL 495644, at *13 (S.D.N.Y. Aug. 21,
1995) (fugitive is “limited to attempting to offer a benign
explanation of the evidence presented against him”); In re
Ezeta, 62 F. 972, 986 (N.D. Cal. 1894) (“explanatory”
evidence “does not contradict or impugn testimony
[submitted by] the prosecution”); Jacques Semmelman, The
Rule of Non-Contradiction in International Extradition
Proceedings: A Proposed Approach to the Admission of
Exculpatory Evidence, 23 Fordham Int’l L.J. 1295, 1297
(2000) (describing “explanatory” evidence as evidence that
               MUNOZ SANTOS V. THOMAS                    67

“provides an innocent explanation for events that the
government contends point toward guilt”).

   The Government offers a useful hypothetical example of
“explanatory” evidence:

       A requesting country seeks extradition based
       solely on an eyewitness account of an
       apparent homicide at a train station. The
       requesting country proffers an eyewitness
       account, in which the witness reported
       standing near the train tracks and seeing two
       men farther down the train platform arguing
       with one another, and heard one man threaten
       to harm the other. As the train approached the
       platform, the witness turned away from the
       men for a moment, and when he turned back,
       he saw the man who had been threatened on
       the train tracks, where he was immediately
       struck by the train and killed. The requesting
       country inferred from the eyewitness account
       that the second man had pushed the victim
       onto the train tracks and charged the second
       man with murder. The accused man located
       security video footage of the train tracks (the
       authenticity of which was not disputed by the
       requesting country) and the video clearly
       showed that in the moment the witness looked
       away, the victim jumped onto the train tracks
       without any contact from the accused.
       Critically, the introduction of the uncontested
       security video would require no fact-finding,
       would not invite weighing of evidence, and
68              MUNOZ SANTOS V. THOMAS

       would negate the only evidence of probable
       cause.

Government’s Answering Brief at 34, Santos v. Thomas, No.
12-56506 (9th Cir. Dec. 23, 2013) (emphasis added).

    An extradition hearing cannot serve the purpose for which
it was created if we require extradition judges to resolve
evidentiary disputes. We have stated that “[t]he very purpose
of extradition treaties is to obviate the necessity of
confronting the accused with witnesses against him.”
Mainero v. Gregg, 164 F.3d 1199, 1206 (9th Cir. 1999).
Requiring extradition judges to resolve evidentiary disputes
would undermine this objective since rebutting a fugitive’s
evidentiary challenge would necessitate that the requesting
country send its evidence and witnesses to the United States
to be (improperly) tested. As the Supreme Court has
explained, the very point of extradition treaties would be
defeated were the requesting country forced to bear this
burden. Bingham, 241 U.S. at 517; see Benson, 127 U.S. at
463 (“We are not sitting in this court on the trial of the
prisoner, with power to pronounce him guilty and punish him
or declare him innocent and acquit him.”). It is this
foreseeable burden that animates the distinction between
“contradictory” evidence and “explanatory” evidence.

    In this case, the petitioner sought to admit self-serving
statements by Hurtado and Rosas that recant their prior
confessions inculpating the petitioner for kidnapping. The
disputed recantations are “contradictory,” as even the
majority admits. Maj. Op. 32. The majority labors to
surgically detach the assertions of torture from the recanted
assertions contained in the very same documents. Maj. Op.
32–35. The assertions of torture, the majority contends, are
                 MUNOZ SANTOS V. THOMAS                       69

“explanatory” rather than “contradictory” evidence because
they suggest that a due process violation has occurred. The
characterization is flawed, and the operation a failure, for
multiple reasons.

    The majority assumes that due process afforded at an
extradition proceeding is the same due process afforded at a
criminal trial, but this is not true. The Supreme Court has
likened an extradition proceeding to a grand jury
investigation into the existence of probable cause. See
Bingham, 241 U.S. at 517; Charlton, 229 U.S. at 459–62. It
is well settled that the target of a grand jury investigation has
no right to present any evidence to the grand jury, even if that
evidence would completely undermine the government’s
evidence. The defendant in an extradition hearing, however,
may present “explanatory” evidence, but only “explanatory”
evidence. Anything more forces an extradition judge to
conduct a mini-trial into the probative value of the proffered
evidence—the very procedure disapproved by the Supreme
Court.

    Moreover, the Supreme Court has held that a number of
Constitutional rights are not cognizable in extradition
hearings. For example, while it violates due process to try a
person who is so mentally incompetent that he cannot assist
with his defense, the Supreme Court in Charlton held that a
fugitive had no right to introduce evidence of insanity at his
extradition hearing. 229 U.S. at 462. Similarly, due process
may protect a criminal defendant from excessive pre-
accusation delay by the prosecution, e.g., United States v.
Lovasco, 431 U.S. 783, 788–89 (1977), but we have held that
“the [U.S.] Constitution does not of its own force impose on
foreign governments the obligation to act speedily in seeking
extradition of a fugitive from the United States,” In re
70                  MUNOZ SANTOS V. THOMAS

Extradition of Kraiselburd, 786 F.2d 1395, 1398 (9th Cir.
1986) (no constitutional or treaty violation simply because
extradition was requested five years after offense occurred).9
Thus, contrary to the majority’s assumption, the Judiciary has
no obligation to ensure that an extradition request or evidence
submitted to show probable cause does not violate our
Constitution. Its obligation is to ensure that an extradition
request does not violate the extradition statute or the
governing treaty.

    Critically, labeling the proffered evidence as going to the
“competence of the government’s evidence” does not, as the
majority suggests, magically or otherwise make the evidence
“explanatory” rather than “contradictory.” Maj. Op. 32–33.
The litmus test is whether, as a practical matter, the
admission of the evidence will result in a mini-trial. Collins,
259 U.S. at 315–16; Charlton, 229 U.S. at 460–62; Benson,
127 U.S. at 463; Barapind, 400 F.3d at 749–50. If the
evidence would compel such a trial, the evidence is
“contradictory.” Here, the majority contends that the
extradition judge must consider the petitioner’s evidence,
even though it contradicts Mexico’s medical evidence
showing the absence of physical injuries shortly after the



  9
    See also Drayer, 190 F.3d 410, 415 (6th Cir. 1999) (14-year delay
between crime and extradition request did not violate due process);
Martin, 993 F.2d at 825 (17-year delay in bringing extradition request did
not bar extradition; neither treaty nor due process afforded right to speedy
extradition); In re Burt, 737 F.2d 1477, 1482, 1486–87 (7th Cir. 1984) (no
violation of due process to extradite fugitive even though extradition
request was made 16 years after commission of crime); Kamrin v. United
States, 725 F.2d 1225, 1227–28 (9th Cir. 1984) (due process protections
not applicable and did not bar extradition where Australia sought
extradition eight years after crime occurred).
                   MUNOZ SANTOS V. THOMAS                              71

torture allegedly occurred.10 Once the extradition judge
“considers” the allegations of duress, Mexico will likely feel
obligated to “produce all its evidence here, both direct and
rebutting, in order to meet the [allegations].” Collins,
259 U.S. at 316. As forewarned by the Supreme Court, “[t]he
result would be that the foreign government . . . would be
compelled to go into a full trial” on the duress issue. Id.
Indeed, an improper mini-trial is likely to result even if, as the
majority holds in conclusory fashion, the extradition judge
may certify extradition in cases where the allegations do not
credibly allege torture on their face. Maj. Op. 41–42.
Foreign governments seeking extradition are unlikely to let
allegations of torture lie unanswered, and the credibility of
conflicting evidence simply cannot be determined without a
trial. The majority has not explained how, in this situation, a
mini-trial could be avoided.

   The majority, perhaps recognizing the impracticality of its
approach, attempts to cabin its holding. It states:

         Where an extradition court first considers
         evidence that a statement was improperly
         obtained, but concludes that it is impossible to
         determine the credibility of the allegations
         without exceeding the scope of an extradition
         court’s limited review, the court has fulfilled
         its obligation—as the extradition court did in
         Barapind.


 10
    Lest we lose sight of the quantity of evidence facing the judge in this
case, this evidence includes all of the additional volumes of documentary
evidence proffered by the petitioner, but not raised on appeal, in
supporting the allegations of torture. Extradition of Santos, 795 F. Supp.
2d at 988.
72                 MUNOZ SANTOS V. THOMAS

Maj. Op. 42. This distinction is illusory. Given the
Government’s evidence and the torture evidence proffered in
this case, how could the extradition court determine the
credibility of the evidence of torture without holding a mini-
trial—in other words, “without exceeding the scope of an
extradition court’s limited review?”

    Under the guidance of the Supreme Court, courts have
attempted to draw a bright line between “explanatory”
evidence and “contradictory” evidence. As explained above,
the cases and supporting literature indicate that “explanatory”
evidence is undisputed evidence that accepts the requesting
country’s evidence as true and casts such evidence in an
innocent light while simultaneously negating the inference of
guilt. See Collins, 259 U.S. at 315–16 (fugitive permitted to
testify “to things which might have explained ambiguities or
doubtful elements in the prima facie case made against
him”—i.e., “evidence bearing upon the issue of probable
cause”); Barapind, 400 F.3d at 749; see also Extradition of
Glantz, 1995 WL 495644, at *13 (fugitive is “limited to
attempting to offer a benign explanation of the evidence
presented against him”); Ezeta, 62 F. at 986 (“explanatory”
evidence “does not contradict or impugn testimony
[submitted by] the prosecution”); Semmelman, supra, at 1297
(“explanatory” evidence is evidence that “provides an
innocent explanation for events that the government contends
point toward guilt”).11 Such evidence requires no fact-finding
and would not invite the weighing of evidence.



  11
     Failure to adhere to this narrow definition could yield unintended
results. It is not clear what estoppel or preclusive effect an extradition
judge’s evidentiary ruling could have in the criminal courts of the
requesting country.
                    MUNOZ SANTOS V. THOMAS                              73

    Of course the deference that the requesting country enjoys
does not mean that an extradition judge must accept
unsubstantiated or otherwise insufficient allegations of
criminality. Giordenello v. United States, 357 U.S. 480, 486
(1958).12 “The improbability or the vagueness of the
testimony [relied upon by the requesting country] may
destroy the probability of guilt.” Shapiro v. Ferrandina,
355 F. Supp. 563, 572 (S.D.N.Y. 1973). Likewise, probable
cause may not exist where an accusation of criminality has
been lodged for which there is insufficient evidence. Man-
Seok Choe, 525 F.3d at 738. Where, as here, the accusation
has been substantiated, probable cause may be defeated by
showing that the evidence was not properly authenticated or
by challenging its sufficiency on some other ground that does
not involve the proffering of competing evidence tending to
contradict the Government’s evidence.


   12
       Several courts have concluded that evidence proffered by the
extraditing state should be deemed truthful by the extradition judge when
assessing probable cause. See In re Extradition of Atta, 706 F. Supp.
1032, 1050–51 (E.D.N.Y. 1989) (noting that evidence contained in the
extradition request “is deemed truthful for purposes of this determination”
(citing Loisel, 259 U.S. at 315–16 )); In re Solis, 402 F. Supp. 2d at 1132;
In re Extradition of Cheung, 968 F. Supp. 791, 794 n.6 (D. Conn. 1997);
Marzook v. Christopher, 924 F. Supp. 565, 592 (S.D.N.Y. 1996) (“I must
accept as true all of the statements and offers of proof by the demanding
state.”); Desautels v. United States, 782 F. Supp. 942, 944 n.2 (D. Vt.
1991). This view has been held to be consistent with the Supreme Court’s
approach in domestic extradition cases. In re Extradition of Singh,
124 F.R.D. 571, 577 (D.N.J. 1987) (citing California v. Superior Court of
Cal., San Bernardino Cty., 482 U.S. 400, 409 (1987) (“If we accept as true
every fact alleged, [the fugitives whose extradition from California was
sought by Louisiana] are properly charged with kidnapping under
Louisiana law. In our view, this ends the inquiry into the issue of whether
or not a crime is charged for purposes of the Extradition Act [18 U.S.C.
§ 3182].”)).
74              MUNOZ SANTOS V. THOMAS

          V.    Deference to the Mexican Courts

    In extradition proceedings, the responsibility for
addressing proffered evidence of torture rests with the
requesting country. In recognition of this principle, Justice
Holmes stated: “[I]f there is presented, even in somewhat
untechnical form according to our ideas, such reasonable
ground to suppose [a fugitive] guilty as to make it proper that
he should be tried, good faith to the demanding government
requires his surrender.” Glucksman, 221 U.S. at 512. Such
deference arises from the comity shared between Treaty
partners as well as case law acknowledging that the courts of
the requesting country, having full access to the necessary
evidence and witnesses, are better qualified than we are to
consider the fugitive’s allegations. Where, at the behest of a
foreign state, the Executive branch requests extradition, it is
for the courts in the requesting country to determine whether
law enforcement agents in that country have procured
evidence improperly and, if so, whether any impropriety so
taints the evidence that it should not be considered.

    Consistent with the determination previously made by the
Executive and Legislative branches, we must accept that the
Mexican legal system can be relied on to adjudicate the
petitioner’s claims fairly. See Spatola v. United States, 741 F.
Supp. 362, 371 (E.D.N.Y. 1990), aff’d, 925 F.2d 615 (2d Cir.
1991) (“[A] judicial proceeding in extradition is not the
proper vehicle for challenging or questioning the fairness of
another country’s criminal justice system.”). Indeed, here the
Mexican courts have already granted the petitioner relief on
the homicide charge that was originally brought against him.
                MUNOZ SANTOS V. THOMAS                       75

                      VI.    Conclusion

    “The principles of international law recognize no right to
extradition apart from treaty.” Factor, 290 U.S. at 287. “To
determine the nature and extent of that right,” therefore, “we
must look to the treaty which created it.” Id. The Extradition
Treaty between the United States and Mexico has been in full
force and effect since 1980. In it the nations have “agree[d]
to mutually extradite, subject to the provisions of this Treaty,
persons who the competent authorities of the requesting Party
have charged with an offense.” Treaty, art. 1. Our system of
government demands that the Judiciary yield to this
arrangement.

    The record in this case consists of documentary evidence
submitted by Mexico that comports with § 3190 and Article
10(6)(b). As such, the evidence meets the competency test
and was properly admitted. The evidence established
probable cause that the petitioner abducted Hermosillo and
her two daughters for ransom in Mexico. When the
extradition judge excluded the petitioner’s competing
evidence in defense, he did so consistent with his limited role
under § 3184. Indeed, this ruling was compelled by the
Supreme Court’s longstanding extradition jurisprudence. See
Fernandez, 268 U.S. at 312; Collins, 259 U.S. at 316;
Bingham, 241 U.S. at 517; Charlton, 229 U.S. at 457–58,
461–62. The ruling cannot be overturned under the
extradition statute or governing treaty, unless principles of
statutory construction and international comity “are now to be
discarded.” Factor, 290 U.S. at 294; cf. Ward, 921 F.2d at
287 (citing plain meaning of § 3184 as justification for
upholding “constitutionality of assigning extradition requests
to a United States magistrate”).
76              MUNOZ SANTOS V. THOMAS

    A defendant’s ability to offer evidence in an extradition
proceeding is limited to “explanatory” evidence. This is
evidence that accepts the requesting country’s evidence as
true and casts the requesting country’s evidence in an
innocent light, while at the same time negating the inference
of guilt. The test for determining whether the proffered
evidence is “explanatory” or “contradictory” is whether its
admission will require a mini-trial. See Collins, 259 U.S. at
315–16; Charlton, 229 U.S. at 460–62; Benson, 127 U.S. at
463; Barapind, 400 F.3d at 749–50. Here, there can be no
doubt that the required admission of “contradictory” torture
evidence demands a mini-trial. There is no other way of
determining whether the authenticated statements were
coerced as the petitioner contends, or whether they were
voluntarily given, as Mexico asserts.

     I am not immune from the “natural anxiety” the majority
has in wanting to investigate the allegations of torture raised
in this case. Fernandez, 268 U.S. at 312. But our concern
does not justify abandoning the limited role we play in the
extradition process. The extradition judge determines only
whether the authenticated evidence establishes probable cause
to believe the fugitive committed the crime, much like a
grand jury returns an indictment, looking only at the evidence
presented by the government. See Bingham, 241 U.S. at 517;
Charlton, 229 U.S. at 459–62. Although allegations that the
authenticated evidence was procured by torture can be
troubling, in extradition proceedings we must trust the
Executive branch and the judicial system of the requesting
country to determine the veracity of such allegations and the
attendant consequences. Because the majority would have
the Judiciary convert extradition proceedings into mini-
trials—contrary to the provisions of the Treaty, the
extradition statute and Supreme Court precedent—I dissent.
