                      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
          November 20, 2014—Pasadena, California

                         Filed March 9, 2015

  Before: Mary M. Schroeder and Jacqueline H. Nguyen,
    Circuit Judges, and Jack Zouhary, District Judge.*

                    Opinion by Judge Nguyen




 *
   The Honorable Jack Zouhary, District Judge for the U.S. District Court
for the Northern District of Ohio, sitting by designation.
2                  MUNOZ SANTOS V. THOMAS

                           SUMMARY**


                  Habeas Corpus/Extradition

    The panel affirmed the district court’s denial of habeas
relief from a magistrate judge’s order certifying Jose Munoz
Santos’ extradition to Mexico on kidnapping charges.

     The panel held that the magistrate judge, serving as the
extradition court, properly excluded from its probable cause
determination evidence that two witnesses, who had provided
key inculpatory statements, later recanted and stated their
statements were obtained by torture. The panel explained
that in a case like this one, where torture allegations are
inextricably intertwined with the witnesses’ recantations, the
evidence was properly excluded because its consideration
would have required a mini-trial on whether the witnesses’
initial statements were procured by torture.

    The panel concluded that the district court properly
denied the habeas petition because the extradition court’s
probable cause determination was supported by competent
evidence.


                             COUNSEL

Matthew B. Larsen (argued), Deputy Federal Public
Defender, and Sean K. Kennedy, Federal Public Defender,
Los Angeles, California, for Petitioner-Appellant.

  **
     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

Aron Ketchel (argued), and Robert E. Dugdale, Chief,
Criminal Division, Assistant United States Attorneys, and
André Birotte Jr., United States Attorney, Los Angeles,
California, for Respondent-Appellee.


                          OPINION

NGUYEN, Circuit Judge:

    Jose Munoz Santos (“Munoz”) appeals the district court’s
denial of habeas relief from a magistrate judge’s order
certifying his extradition to Mexico on kidnapping charges.
He argues that the magistrate judge erroneously excluded
evidence that two witnesses, who had provided key
inculpatory statements, later recanted and stated that their
statements were obtained by torture. We find no error. The
evidence of torture was, as Munoz concedes, inextricably
intertwined with the witnesses’ recantations. As a result,
considering the witnesses’ claims of torture would have
required the magistrate judge, serving as the extradition court,
to weigh conflicting evidence and make credibility
determinations. Under these circumstances, the extradition
court properly excluded this evidence. We affirm.

                      BACKGROUND

A. Evidence Supporting the Extradition Certification

   In support of its extradition request, the government of
Mexico provided statements from five witnesses implicating
Munoz in the alleged kidnapping for ransom of Dignora
Hermosillo Garcia (“Hermosillo”) and her two children.
According to Hermosillo, she and her two young daughters
4               MUNOZ SANTOS V. THOMAS

were abducted from their home in the evening of August 18,
2005, by a masked man holding a gun. She later identified
Fausto Librado Rosas Alfaro (“Rosas”) as the masked
gunman. Rosas forced Hermosillo and her children into
Hermosillo’s jeep and drove them away at high speed. Rosas
tugged on his mask as he drove and Hermosillo saw that he
had a large mark, like a mole or a scar, on his nose. Rosas
asked her for information about her husband’s work and daily
routine, and later, for her bank card PIN number. At one
point, Rosas stopped the vehicle to tape his captives’ mouths,
hands, and feet. He eventually took one child out of the car
and abandoned her, and later did the same to the second child.
After more driving, he left Hermosillo tied up by a tree. The
younger of Hermosillo’s daughters was later found dead.
Hermosillo’s husband, Roberto Castellanos Meza
(“Castellanos”), confirmed that his wife and daughters went
missing in the evening of August 18, 2005.

    Rosas gave a statement, dated March 27, 2006, admitting
to being the masked gunman who abducted Hermosillo and
her daughters. He identified petitioner Munoz as a chief
orchestrator of the kidnapping, and attested to the
participation of Jesus Servando Hurtado Osuna (“Hurtado”).
Hurtado also gave a statement, dated March 14, 2006, in
which he admitted to his role as the lookout on the day of the
kidnapping. Hurtado corroborated Rosas’ identification of
Munoz as an orchestrator of the scheme.

    Finally, the Mexican government provided a statement of
Benigno Andrade Hernandez (“Andrade”), asserting that
Rosas and Munoz approached him in early August 2005 to
help them pull a “job” that involved asking “Beto” for 2
million pesos. The parties do not dispute that “Beto” is a
                   MUNOZ SANTOS V. THOMAS                               5

common nickname for “Roberto,” the first name of
Hermosillo’s husband.

    Based on these five statements—of Hermosillo,
Castellanos, Rosas, Hurtado, and Andrade—the extradition
court found that there was probable cause to believe that
Munoz was guilty of the alleged kidnapping, and accordingly
certified extradition. In re Extradition of Santos, 795 F.
Supp. 2d 966, 979–83 (C.D. Cal. 2011).

B. Excluded Statements

   In certifying extradition, the extradition court excluded
from its consideration the following six statements—four
from Hurtado, and two from Rosas. Id. at 987–90.

     On March 22, 2006, Hurtado stated that he “do[es] not
ratify” his prior statement implicating Munoz because it was
signed “upon torture,” and is “false.” The remainder of the
statement details the torture and other abuse that he suffered.
In a statement dated May 25, 2006, Hurtado stated that his
prior statement of October 12, 2005, was made “under
torture.”1 Hurtado also denied any involvement in the alleged
kidnapping. Next, on November 21, 2006, Hurtado asserted
that on August 18, 2005 (the day of the alleged kidnapping),
a taxi driver took him to a location where he had been
performing carpentry work. He stated that he was tortured,


  1
     The extradition court did not address Hurtado’s October 12, 2005
statement, which contains a dramatically different description of the
events on the day of the alleged kidnapping, but also makes no allegations
of torture. Munoz does not contend that the extradition court’s silence as
to this statement constitutes error. We therefore express no view on the
significance, or lack thereof, of Hurtado’s October 12, 2005 statement.
6               MUNOZ SANTOS V. THOMAS

and presented with a written statement, which he signed. He
was told that he would be killed if he changed his statement.
Finally, on June 10, 2009, Hurtado stated that he does not
know Munoz or Rosas. He also renewed his claims that he
was subjected to torture and beatings.

    Similarly, Rosas stated on May 25, 2006, that he was
“forced to sign” his prior statement implicating Munoz and
others in the alleged kidnapping, under “physical and oral”
pressure, including threats to the wellbeing of his family.
Rosas added that he wished to “retract” his prior statement.
On June 20, 2006, Rosas elaborated on the threats made
against his family, and “den[ied] the parts” of his prior
statement that implicated him in the kidnapping.

    The extradition court excluded these statements from its
probable cause determination. Relying on Barapind v.
Enomoto, 400 F.3d 744, 749 (9th Cir. 2005) (en banc) (per
curiam), the extradition court stated:

       recantation evidence is contradictory
       evidence, and . . . the complex, nuanced fact-
       intensive inquiry into the comparative
       reliability of inculpatory statements and
       recantations, including the circumstances
       under which the statements were obtained, is
       appropriately reserved for determination by
       courts of the requesting state, which have
       access to the full panoply of evidence.

In re Extradition of Santos, 795 F. Supp. 2d at 989 (citing
Barapind, 400 F.3d at 749).
                MUNOZ SANTOS V. THOMAS                       7

    Munoz then petitioned for a writ of habeas corpus in the
district court. He argued that the extradition court’s probable
cause determination was not supported by competent
evidence because it failed to consider evidence of torture.
The district court denied relief, concluding that Rosas’ and
Hurtado’s assertions of torture were “inextricably
intertwined” with their recantations and therefore were
properly excluded. This appeal followed.

   JURISDICTION AND STANDARD OF REVIEW

    The extradition court had jurisdiction pursuant to
18 U.S.C. § 3184. The district court had jurisdiction pursuant
to 28 U.S.C. § 2241(a), and we have jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253(a). As relevant here, “[t]he
district court’s habeas review of an extradition order is
limited to whether . . . there is any competent evidence
supporting the probable cause determination of the
[extradition court].” Vo v. Benov, 447 F.3d 1235, 1240 (9th
Cir. 2006) (internal quotation marks omitted). We review de
novo the district court’s decision denying a habeas petition.
Prasoprat v. Benov, 421 F.3d 1009, 1013 (9th Cir. 2005).

                       DISCUSSION

A. Limited Nature of Extradition Proceedings

    Extradition from the United States begins when a foreign
nation lodges a request directly with the United States
Department of State. Vo, 447 F.3d at 1237. After the State
Department evaluates whether the request falls within the
scope of the relevant extradition treaty, a United States
Attorney seeks an arrest warrant in federal district court for
the person sought. Blaxland v. Commonwealth Dir. of Pub.
8               MUNOZ SANTOS V. THOMAS

Prosecutions, 323 F.3d 1198, 1207 (9th Cir. 2003). If a
judicial officer—usually a magistrate judge—finds that there
is probable cause to “sustain the charge under the provisions
of the proper treaty or convention,” 18 U.S.C. § 3184, the
officer certifies to the Secretary of State that the person is
extraditable, Blaxland, 323 F.3d at 1208.

    Extradition proceedings are limited affairs, akin to
“preliminary examinations . . . for the purpose of determining
whether a case is made out which will justify the holding of
the accused.” Charlton v. Kelly, 229 U.S. 447, 460 (1913)
(quoting Benson v. McMahon, 127 U.S. 457, 463 (1888)). A
person facing extradition may present evidence that “explains
away or completely obliterates probable cause . . . whereas
evidence that merely controverts the existence of probable
cause, or raises a defense, is not admissible.” Mainero v.
Gregg, 164 F.3d 1199, 1207 n.7 (9th Cir. 1999), superseded
by statute on other grounds, Pub. L. No. 105-277, § 2242.
This rule rests on the principle that a foreign government
seeking extradition should not be forced “to produce all its
evidence [before the extradition court in the United States],
both direct and rebutting, in order to meet the defense thus
gathered from every quarter,” thereby converting the
extradition proceeding “into a full trial on the merits.”
Collins v. Loisel, 259 U.S. 309, 316 (1922) (quoting In re
Wadge, 15 F. 864, 866 (S.D.N.Y. 1883)). Thus, although
“[a]dmission of evidence proffered by the fugitive at an
extradition proceeding is left to the sound discretion of the
court,” the exercise of that discretion is “guided of course by
the principle that evidence of facts contradicting the
demanding country’s proof or establishing a defense may
properly be excluded.” Hooker v. Klein, 573 F.2d 1360, 1369
(9th Cir. 1978).
                MUNOZ SANTOS V. THOMAS                        9

B. “Explanatory” versus “Contradictory” Evidence

    Courts have struggled to explain the distinction between
admissible “explanatory” or “obliterating” evidence on the
one hand, and inadmissible “contradictory” evidence on the
other. See, e.g., In re Extradition of Strunk, 293 F. Supp. 2d
1117, 1122 (E.D. Cal. 2003) (describing the distinction
between these types of evidence as “metaphysical”). We
need not wade into that issue in great depth, however, as our
decision in Barapind largely guides our analysis in this case.

    In Barapind, a district judge, sitting as an extradition
court pursuant to 18 U.S.C. § 3184, certified Kulvir Singh
Barapind’s extradition to India. 400 F.3d at 746–47. The
government of India sought Barapind’s extradition due to his
involvement in several incidents as a member of the All India
Sikh Student Federation, a group “dedicated to establishing
an independent sovereign Sikh nation.” Id. at 747. In one of
the incidents, Barapind allegedly “drove a scooter while a
gunman riding with him killed one man and wounded
another.” Id. at 749. India relied heavily on the affidavit of
Makhan Ram, a witness who identified Barapind as the driver
of the scooter. In re Extradition of Singh, 170 F. Supp. 2d
982, 1004–05, 1024 (E.D. Cal. 2001).

    In the extradition court, Barapind offered another affidavit
from Ram, in which Ram “denie[d] ever having made a
statement implicating Barapind or having seen him at the
scene of the attack.” Id. at 1024. The extradition court noted
Ram’s “potential bias against India” based on a claim that he
previously had been falsely accused of a crime by the police.
Id. The court also pointed to a lack of information
concerning the circumstances under which the subsequent
affidavit was taken, and about Ram’s “background or
10              MUNOZ SANTOS V. THOMAS

political views to enable evaluation of his motives and
possible bias.” Id. The extradition court then certified Ram’s
extradition, concluding that Ram’s “recantation is conflicting
and inconsistent with his earlier alleged statements,” and that,
“[u]nder all the circumstances, the credibility of Makhan
Ram’s recantation cannot be determined without a trial.” Id.

    We affirmed the certification of extradition as to the
charges relating to the above incident. In an en banc ruling,
we held that an extradition court may properly exclude
recantations or other conflicting statements if consideration
of such evidence would require the court to weigh conflicting
evidence or make credibility determinations. Barapind,
400 F.3d at 749–50; see also Quinn v. Robinson, 783 F.2d
776, 815 (9th Cir. 1986) (noting that an extradition court
“does not weigh conflicting evidence and make factual
determinations”). We concluded:

       The extradition court was supported by
       competent evidence in finding that Barapind
       did not obliterate India’s showing of probable
       cause, as [Ram’s] more recent affidavit
       constituted conflicting evidence, the
       credibility of which could not be assessed
       without a trial. Because extradition courts do
       not weigh conflicting evidence in making
       their probable cause determinations, we find
       no basis for overturning the extradition
       court’s decision that probable cause of
       Barapind’s guilt existed . . . .
                   MUNOZ SANTOS V. THOMAS                              11

Barapind, 400 F.3d at 749–50 (citation, internal quotation
marks, and brackets omitted).2

C. The Recantation Evidence was Properly Excluded

    Here, like Ram’s second affidavit in Barapind, the
subsequent statements of Rosas and Hurtado are recantations;
they directly contradict or otherwise challenge these
witnesses’ initial inculpatory statements.3 Rosas stated that
he wished to “retract” his prior statement, and that he
“den[ied]” the parts of the statement that implicated him.
Hurtado asserted that he “do[es] not ratify” his initial
statement, had “nothing to do” with the alleged kidnapping,
was performing carpentry work on the day of the alleged
kidnapping, and did not know Munoz or Rosas. Determining
whether to credit these subsequent statements or Rosas’ and
Hurtado’s initial inculpatory statements would have required
the extradition court to weigh conflicting evidence and make
credibility findings. We therefore conclude that the


 2
   Barapind’s analysis of recantation evidence is largely consistent with
the approach of other circuit courts that have addressed this issue. See
Hoxha v. Levi, 465 F.3d 554, 561–62 (3d Cir. 2006) (holding that the
extradition court did not abuse its discretion in excluding a recantation
given that the original statement was independently corroborated, and the
recantation “provided an alternative and contradictory narrative that can
properly be presented at trial”); Eain v. Wilkes, 641 F.2d 504, 511–12 (7th
Cir. 1981) (holding that the extradition court properly excluded statements
offered by a person challenging extradition because the statements “tend
to contradict or challenge the credibility of the facts implicating
petitioner,” and that “such a contest should be resolved at trial” in the
country seeking extradition).
 3
   A recantation is a “retraction” or a “disavowal.” Recantation, Oxford
English Dictionary, www.oed.com/view/Entry/159345?redirectedFrom=
recantation#eid (last visited Feb. 2, 2015).
12                 MUNOZ SANTOS V. THOMAS

extradition court properly excluded these subsequent
statements because they constitute inadmissible recantations.
See Barapind, 400 F.3d at 749–50.4 Since Munoz’s only
challenge to the extradition court’s probable cause
determination is based on the exclusion of these recantations,
we likewise conclude that the probable cause determination
was supported by competent evidence. Cf. Quinn, 783 F.2d
at 815 (“[O]n review we can determine only whether, because
of an absence of competent evidence, the magistrate’s
[probable cause] determination is wrong as a matter of law.”).

    Munoz argues that two of the challenged statements—
Rosas’ statement of May 25, 2006, and Hurtado’s statement
of March 22, 2006—offer no alternate factual account of the
kidnapping to compete with the version of events relied on by
Mexico in support of its extradition request. According to
Munoz, the recanting statements should not have been
precluded as “contradictory” evidence because in these
statements, Rosas and Hurtado simply reject their prior
inculpatory statements on the ground that they were procured
by torture. Munoz’s argument is foreclosed by Barapind
because there, Ram’s recantation also did not offer a
competing factual narrative. See 400 F.3d at 749. Rather,
Ram stated that he never identified Barapind and was forced
by the police to sign a blank sheet of paper. Id. We
nonetheless found no error in the extradition court’s
conclusion that it could not resolve the conflict between


  4
   This conclusion is bolstered by the fact that, like in Barapind, Rosas
and Hurtado had an incentive to falsely recant, as they presumably faced
criminal liability stemming from their own participation in the alleged
kidnapping. Cf. In re Extradition of Singh, 170 F. Supp. 2d at 1024
(noting the recanting witness’s reasons for bias against the Indian
government).
                MUNOZ SANTOS V. THOMAS                      13

Ram’s affidavits without a trial. Id. at 749–50. The same
analysis applies here.

    Next, Munoz contends that evidence procured by torture
is necessarily not “competent evidence” that can support a
determination of probable cause. It is beyond dispute that the
use of evidence obtained by torture is “unspeakably
inhumane,” Boumediene v. Bush, 476 F.3d 981, 1006 (D.C.
Cir. 2007) (Rogers, J., dissenting), judgment vacated, Al
Odah v. United States, 282 F. App’x 844 (D.C. Cir. 2008),
and evidence obtained by torture is inadmissible in domestic
criminal proceedings, cf. Crowe v. County of San Diego,
608 F.3d 406, 433 (9th Cir. 2010). Here, however, we agree
with the district court that the allegations of torture are
“inextricably intertwined” with Rosas’ and Hurtado’s
recantations. Each recantation includes both a disavowal of
the witness’s prior inculpatory statements, as well as
allegations that the statements were procured by torture.
Indeed, Munoz concedes that the district court correctly
characterized the evidence as “inextricably intertwined,” and
that Rosas and Hurtado are essentially saying, “I was tortured
so the things I said the first time are not credible.” Thus, in
order to evaluate Rosas’ and Hurtado’s torture allegations, the
extradition court would necessarily have had to evaluate the
veracity of the recantations and weigh them against the
conflicting inculpatory statements. Doing so would have
exceeded the limited authority of the extradition court. See
Barapind, 400 F.3d at 749–50; Quinn, 783 F.2d at 815.

    We recognize that several extradition courts in this
Circuit have, at times, elected not to rely on evidence
allegedly obtained by torture, or have considered allegations
of torture but found them to be unreliable. See Cornejo-
Barreto v. Seifert, 218 F.3d 1004, 1008 (9th Cir. 2000),
14              MUNOZ SANTOS V. THOMAS

overruled on other grounds, Trinidad y Garcia v. Thomas,
683 F.3d 952 (9th Cir. 2012); Mainero, 164 F.3d at 1206
(noting that the extradition court considered allegations of
torture, but ultimately found that there was “no reliable
evidence of torture or duress”). Indeed, Munoz cites a
different passage in Barapind, where we endorsed the
extradition court’s “incident-by incident” consideration of
whether certain evidence was fabricated or procured by
torture. See 400 F.3d at 748. Some courts in other circuits
have taken similar approaches. E.g., Atuar v. United States,
156 F. App’x 555, 563 (4th Cir. 2005) (noting that the
extradition court “correctly considered” evidence that a prior
inculpatory statement was obtained by torture, but found that
evidence to be less reliable than the initial inculpatory
statement); Matter of Extradition of Contreras, 800 F. Supp.
1462, 1469 (S.D. Tex. 1992) (finding recantations alleging
torture to be more credible than initial inculpatory
statements).

     However, none of these cases stands for the proposition
that an extradition court must accept as true allegations of
torture whenever they are raised, nor do they endorse the
weighing of evidence by an extradition court. Rather, these
cases reflect the highly fact-intensive nature of these
proceedings, and the well-established principle that
“[a]dmission of evidence proffered by the fugitive at an
extradition proceeding is left to the sound discretion of the
[extradition] court.” Hooker, 573 F.2d at 1369. Under the
appropriate circumstances, an extradition court may exercise
its discretion to consider allegations of torture. But in a case
like this one, where torture allegations are inextricably
intertwined with the witnesses’ recantations, the evidence was
properly excluded because its consideration would require a
mini-trial on whether the initial statements of Rosas and
                   MUNOZ SANTOS V. THOMAS                            15

Hurtado were procured by torture. See Barapind, 400 F.3d at
749–50.5

                         CONCLUSION

    The extradition court did not abuse its discretion in
excluding Rosas’ and Hurtado’s statements alleging torture
as contradictory evidence. In turn, the district court properly
denied Munoz’s habeas petition because the extradition
court’s probable cause determination was supported by
competent evidence.

     AFFIRMED.




 5
   The government asserts that any evidence proffered or relied on by a
person facing extradition is per se inadmissible if it requires the
extradition court to resolve a factual dispute as to any matter. We need
not address this contention because we resolve the case on much narrower
grounds, i.e., that Rosas’ and Hurtado’s allegations of torture were
inadmissible, given that those allegations were inextricably intertwined
with recantations.
