VEHICLES FOR REVISITING EXTRADITION

C O N F I D E N T I A L SAN SALVADOR 001459 SIPDIS SIPDIS DOJ/OIA FOR JOHN BEASLEY DEPT FOR INL, L/CLIFFORD JOHNSON AND SARA TORRES E.O. 12958: DECL: 07/31/2017 TAGS: PGOV PREL KJUS KHLS KCRM ES SUBJECT: VEHICLES FOR REVISITING EXTRADITION REF: STATE 98687 Classified By: Ambassador Charles L. Glazer, Reasons 1.4 (b) and (d) ¶1. (C) SUMMARY: Embassy has been advised that there are currently two potential cases to test the Salvadoran judiciary's willingness to extradite Salvadoran nationals to the US. The simplest of these concerns a dual national convicted of child sexual assault who fled the US prior to sentencing. The second, and more complex case, charges a Salvadoran gang member indicted in a RICO conspiracy case involving murder and attempted murder in the United States. July 17 discussions with Salvadoran counterparts over the latter case produced a mixed response, with the Salvadoran Attorney General's Office (Fiscalia) willing to proceed and the Ministry of Foreign Affairs (MFA) more mixed in its reaction. Embassy recommends a two-stage approach, leading with an immediate extradition request in the sexual assault case, where there is a reasonable chance of success, before moving forward on the more complicated RICO gang matter. End Summary. -------------- Fiscalia is On-Board -------------- ¶2. (U) On July 17, Stacy de la Torre, DOJ Attache, and John Beasley, Senior Trial Attorney, DOJ, Office of International Affairs, met with staff from the Salvadoran Attorney General's Office (Fiscalia) to explore their views on the extradition of Salvadoran nationals and the possibility of putting forward a test case. After a brief meeting with Attorney General Felix Garrid they spent several hours with a group of senior prosecutors, including Nelson Mena, Legal Advisor to the AG; Rudolfo Delgado, Assistant to the AG; and Aquilles Parada, head of the Organized Crime Unit. ¶3. (U) Beasley noted that the U.S. appreciated the efforts of the GOES to make the changes necessary to Article 28 of the Salvadoran constitution to allow for the extradition of Salvadoran nationals. Beasley added that Article 8 of the Treaty on Extradition between U.S. and El Salvador (1911) also permitted the extradition of Salvadoran nationals. Mena concurred that, when read together, the language of Article 28 and Article 8 permitted the extradition of Salvadoran nationals. ¶4. (U) Beasley and Mena agreed that the climate was now ripe for a test case, and that the case of Rigoberto Mejia, a high level enforcer for MS-13 who has committed murders in both U.S. and El Salvador, might be appropriate. (Note: Mejia is currently free in El Salvador after a key prosecution witness recanted under intimidation. The prosecutor's office appears anxious to find a way to hold him in custody. End note.) Mena added that this would be breaking new ground in the Salvadoran legal system on issues of dual criminality, the meaning of life imprisonment, and the reciprocity of procedural legal guarantees. ¶5. (C) During the discussion of the legal issues involved, it became apparent that there is currently no established procedure in Salvadoran law for handling extraditions. (It appears that El Salvador has used deportation of foreign nationals in lieu of extradition; as far as we can determine, there has never been a formal extradition of any sort from El Salvador.) As such, while the Fiscalia appears to be a willing and enthusiastic partner, there are no established avenues for extradition requests. The view of the Fiscalia is that it would have to be assigned the case by the Supreme Court. (NOTE: Mena, Parada and Delgado each expressed concern that Elizabeth Villata, legal advisor to both the MFA and the Supreme Court, would be the first person to whom Supreme Court would turn for advice on how to proceed in this case, and that she had not been positively disposed to the extradition of Salvadoran nationals in the past. End Note.) ¶6. (U) Beasley suggested that the U.S. initially send down only a request for provisional arrest, as provided for in Articles 11 and 12 of the bilateral treaty. The effect of this would be that the sole matter before the Court would be the request for an arrest warrant. Assuming all of the treaty requirements were met, the Court would refer the case to a trial level judge who would issue a Salvadoran arrest warrant. Once arrested, the person sought would be given a defense lawyer, and the judge would likely assign a prosecutor to represent the interests of the GOES. The prosecutor could then commence the litigation of the extradition. By the time the formal extradition packet arrived, a prosecutor would already have been assigned. Mena et al thought that this would be a workable solution. E -------------- MFA Reaction More Mixed -------------- ¶7. (U) Beasley and Poloff went on to meet with Elizabeth Villata, legal advisor to both the MFA and the Supreme Court, and Dania Tolentino, the lead prosecutor before the Supreme Court. Villalta stated that extradition of nationals was clearly allowed now under both the Salvadoran constitution and the bilateral extradition treaty. She stated that she saw no obstacles, only "constitutional requirements" that have to be satisfied, such as assurances of no death penalty or life imprisonment. (Note: According to Villalta, a life sentence without possibility of release and rehabilitation (parole),would equate to "life". End Note) ¶8. (U) Villalta indicated that El Salvador has a sentencing regime similar to the U.S. Federal regime, and that the maximum penalty under Salvadoran law that has been upheld by the Supreme Court is 75 years. (Note: An issue of greater concern is the inability to enumerate the "guarantees afforded their nationals under their constitution," as phrased in Article 28 of the Salvadoran constitution. According to Villalta, reciprocity of these constitutional guarantees would be a requirement for the extradition of a Salvadoran national. End Note.) -------------- An Easier Precedent? -------------- ¶9. (C) We understand that the Department and DoJ are considering an extradition request for Jose Marvin Martinez, a dual national convicted of the sexual assault of his natural daughter in Texas. Martinez has been sentenced to eight years in prison for the offense, but fled prior to submission of the case to a jury. We believe that there is a reasonable case for Martinez's extradition for several reasons: he's an American citizen; his daughter may hold Salvadoran nationality (making the case more attractive); he has been convicted of a particularly heinous crime and sentenced; the offense is prohibited under both US and Salvadoran law; and he has already been sentenced to a term that will not open a debate over the meaning of "life imprisonment." -------------- Embassy Recommendation -------------- ¶10. (C) Our principal political goal is to ensure the extradition of Salvadoran nationals to stand trial for serious crimes committed in the US. We thus recommend that we treat these extradition requests as a two-stage process. We should proceed immediately on the Martinez case, with the hope of establishing an extradition precedent (as well as the legal process to pursue extradition cases here) that could open the door to further extradition request. If the court renders a favorable judgment on our request to extradite Martinez, we could then move forward under more favorable circumstances with the Mejia case. We should lead with our stronger case, rather than lose a chance of setting the precedent because of issues specific to the Mejia's circumstances. ¶11. (C) We would hope that both requests would succeed, but recognize that in order for this to happen, the Salvadoran Supreme Court will need to establish a precedent that its nationals can be extradited. Unfortunately, Mejia extradition would require the Supreme Court to find in our favor on two additional issues: dual criminality and the possible life sentence. We think the odds are reasonable on the Martinez case, but far less favorable on Mejia's. The latter would bear the additional political burden of unfavorable publicity, resulting from the fact that Mejia was erroneously deported to El Salvador because of an error made by a USG agency. Glazer