Article IV prosecutions.

A U.S. law enforcement agency received a report of a serious violent crime. Investigating officers determined from witnesses that the suspect, a Mexican national, returned to his homeland to avoid arrest. The investigators subsequently uncovered a Mexican address for the fugitive. Now, they want to bring him to justice. What course of action should they take?

Traditionally, law enforcement authorities seek to extradite Mexican national fugitives who flee the United States to evade justice and take refuge in Mexico. While extradition represents a viable option and the clear preference for most jurisdictions, U.S. law enforcement officials, particularly when seeking justice in exceptional cases, should consider exploring another legal process called domestic prosecution, foreign prosecution, or, simply, Article IV.

Defining Article IV

Article IV refers to the law under the Mexican Federal Penal Code that permits Mexican federal authorities to prosecute Mexican nationals who commit crimes in foreign countries or to prosecute other nationals who commit crimes against Mexican citizens outside of Mexico. (1) Usually, law enforcement officials in the United States (e.g., state and local county prosecutors) seek recourse under the mechanism of Article IV of the Mexican Federal Penal Code because Mexico's domestic law on international extradition prohibits Mexican authorities from extraditing its citizens in all but the most exceptional circumstances. The extradition treaty between the United States and Mexico expressly provides that extradition of nationals is a matter of discretion. In 2000, for instance, the government of Mexico extradited a Mexican national for the murder of a U.S. Border Patrol agent.

Because many U.S. prosecutors' requests for extradition often fail to meet this exceptional circumstances threshold, officials may choose to forego prosecution in their jurisdiction and surrender their right to prosecute to Mexican federal authorities. In effect, prosecutors in the United States request that Mexican federal prosecutors seek justice on their behalf generally for egregious and violent crimes, such as murder, child molestation, forcible rape, kidnapping, robbery, and aggravated assault. Article IV is similar to an extradition in that the fugitive must be found in Mexico. Unlike extradition, however, defendants (Mexican nationals) are prosecuted in Mexico and, if convicted, serve their sentences there.

Using Article IV

To use Article IV, U.S. law enforcement officials, first and foremost, must prove that either the suspect or victim is a Mexican national. Without this proof, Mexico lacks jurisdiction to prosecute. During the investigative stage of the crime, officers can obtain information from witnesses or documentation of the suspect's or victim's Mexican nationality. Other times, investigators might rely on the suspect's or victim's U.S. Immigration and Naturalization green immigration card, personal letters, or similar documents to prove Mexican nationality. Mexican prosecutors even have accepted statements from family members, friends, and acquaintances as proof that the suspect or victim is a Mexican national.

Dual nationality does not affect the application of Article IV. Historically, Mexico recognizes and treats first-generation U.S. nationals as Mexican nationals for purposes of extradition and Article IV prosecution. Mexican officials emphasize that their government does not intend to provide a safe haven for violent fugitives and will not allow Mexican nationals to flee with impunity from the criminal prosecution of any country's jurisdiction.

When Mexico has Article IV jurisdiction, the case must meet three conditions and requirements before Mexican federal prosecutors can initiate and begin an Article IV prosecution. First, U.S. law enforcement agencies requesting Article IV prosecution must provide the fugitive's address in Mexico. Generally, the majority of the fugitives who flee from U.S. prosecution return to their hometowns. Addresses in Mexico are very different from those in the United States, particularly in the rural areas. Often, rural addresses are listed as ranchitos (ranches) or elidos (communal properties) or designated by the kilometer of that area of the state. The residences in these locations do not have specific home addresses. In the urban areas of Mexico, addresses are listed by colonias (colony or settlement) and fraccionamientos (a particular section or neighborhood). The colonia and fraccionamiento generally will have a specific home address. Providing ample and specific locations or addresses in the rural and urban areas of Mexico assists Mexican law enforcement authorities in the apprehension of the fugitives. Even telephone numbers can assist Mexican authorities in locating the fugitives.

Second, U.S. prosecutors must confirm that the fugitive has not been "definitively judged" in the U.S. jurisdiction for the criminal act that the fugitive committed. U.S. prosecutors must submit a letter with the completed Article IV package stating that the fugitive has not been "tried and convicted" with no appellate recourse or "tried and acquitted." Under the Mexican Constitution and Mexican Federal Penal Law, accused suspects cannot be tried twice for the same crime, prescribing the principle of double jeopardy.

However, fugitives who flee to Mexico while on bail or are free on recognizance, pending sentencing and awaiting appellate resolution, can be prosecuted under Article IV. According to Mexican authorities, a fugitive located in Mexico can be prosecuted under Article IV for any outstanding judicial procedural or appellate issue outside of Mexico.

Finally, the offense or offenses for which U.S. law enforcement officials seek prosecution in Mexico must exist as a crime in both countries. Mexican law may not recognize some U.S. crimes because of social and cultural differences. For example, parental child abduction offenses are penalized throughout the United States, but not generally, at least not yet, in Mexico. How Mexico prosecutes juveniles who are accused of committing serious and violent crimes represents another difference between the United States and Mexico that arises from time to time. In the United States, juveniles who commit serious and violent crimes can be tried as adults at the federal level, if not in all states. Under Mexican penal law, juveniles cannot be tried as adults. In general, however, most violent crimes committed by adults fall under the dual criminality requirements of Article IV.

Creating Liaison

In the early 1970s, filing Article IV cases with the Mexican Federal Attorney General's Office (PGR) constituted a new frontier for California law enforcement, and specific guidelines did not exist. The number of violent crimes being committed by Mexican nationals were proliferating significantly throughout the state, and many fugitives wanted in the United States sought safe haven or refuge in their hometowns in the Republic of Mexico. Concerned with this developing trend, in 1975, the California Department of Justice established a Mexican Liaison Unit (MLU), staffed by one bilingual agent, within the California Bureau of Investigation to assist California law enforcement agencies in addressing Article IV cases and other liaison requests.

Next, the California attorney general asked the MLU agent to explore alternative solutions with Mexico's federal prosecutors. Meeting in Tijuana in the Mexican state of Baja California, Mexican federal prosecutors and the MLU agent soon focused on Article IV of the Mexican Federal Penal Code to address the arrest and prosecution of Mexican nationals in Mexico accused of committing violent crimes in California.

In that same year, the California attorney general authorized the MLU agent to travel to the Republic of Mexico and file Article IV criminal complaints for California police departments, sheriffs' offices, and district attorneys. From 1975 to 1987, the agent handled, on average, three Article IV filings a year. Renamed the Foreign Prosecution Unit (FPU) in 1991, the program's mission remained the same: to assist California law enforcement officials with identifying, developing, preparing, and presenting Article IV cases in Mexico. FPU has grown to include two special agent supervisors, two special agents, and a full-time professional translator at the California Bureau of Investigation's San Diego regional office. With this current staff, FPU averages approximately 15 Article IV filings each year. Due to achieving numerous successful Article TV filings in Mexico, FPU now receives requests for Article IV assistance from law enforcement agencies outside of California. (2)

Assisting Local Agencies

When FPU receives an Article IV request from a local, county, or state law enforcement agency for an evaluation of a case, an FPU agent reviews the facts and circumstances of the particular case to determine if it satisfies the legal requirements to file the complaint in Mexico. To arrive at a decision, the FPU agent will confirm with the requesting jurisdiction's investigator the nationality of the fugitive, whether an address has been established in the Republic of Mexico, if the crime has dual criminality in both countries, and the prosecutor's interest in surrendering jurisdiction. Many law enforcement officials favor extradition as it is a matter of policy that a defendant should be tried in the jurisdiction where the crime occurred. (3)

After discussing the underlying facts of a case with an FPU agent, law enforcement officials may believe that the case will not reach the exceptional circumstances threshold of an extradition required under Mexican law. After law enforcement officials concur with the filing of an Article IV complaint, rather than extradition, FPU agents explain the costs to file the case. These include travel expenses and other ancillary costs that the U.S. agency must pay to file the case with Mexico's Federal Attorney General's Office in Mexico City or at Mexican state delegation offices in other areas of the country.

Preparing the Article IV Package

Once a jurisdiction has decided to seek prosecution of a fugitive under Article IV, the law enforcement agency must assemble an Article IV package. For a homicide case, the package includes the crime report describing the officers arriving at the scene and the description of the crime scene; follow-up or continuation reports describing witnesses' statements; scientific reports; medical and coroner reports; laboratory results; certified copies of the death certificate, the charging document or criminal complaint, and the arrest warrant; and copies of the state penal code sections describing the violation and the definition of a peace officer for that state. In addition, the package also must include crime scene and autopsy photographs and, if available, a photograph of the fugitive with an address or specific location of the fugitive in Mexico. Finally, a letter from the prosecutor, such as a district attorney, must confirm that the defendant has not been "definitively judged" for the offenses in that jurisdic tion.

Next, the agency must have the Article IV package translated into Spanish. FPU has a full-time professional translator on staff who provides translation services to all California law enforcement agencies at no cost. With out-of-state agencies, FPU can recommend an experienced private translator whose services will cost a nominal fee. Once the Article IV package is translated and assembled, FPU agents will arrange to file the Article IV with the PGR Office of International Legal Affairs in Mexico City. Pursuant to Mexico's guidelines for authorizing the filings of Article IV complaints, authorities can file complaints 1) at the Mexican embassy in Washington, D.C., 2) before a Mexican consul general at a Mexican consulate in the United States, 3) before a PGR legal attache in the United States, 4) at the Office of International Affairs in the Mexican Attorney General's Office in Mexico City, or 5) at a state PGR delegation office in the Republic of Mexico. Because of an agreement with the Office of Internation al Affairs in the Mexican Attorney General's Office in Mexico City, FPU files all Article IV complaints from California in Mexico City.

Filing the Article IV Complaint

Just like a criminal complaint is filed and commences the criminal process in the United States, the filing of an Article IV package before a Mexican federal prosecutor of the Office of International Affairs in the Mexican Attorney General's Office in Mexico City initiates the criminal process in Mexico. According to Mexico's law, a representative from the U.S. jurisdiction filing the complaint must appear personally and sign the document or denuncia to initiate a formal complaint. When a law enforcement official appears before the Mexican prosecutor, the sole mission of that person is to process the Article IV package. The prosecutor reviews the package for legal sufficiency and, if satisfied, forwards the complaint to a judge for issuance of an arrest warrant. Generally, the prosecutor sends the complaint to the judge in the jurisdiction where the defendant resides. Once the arrest warrant is issued, the prosecutor will forward the warrant of arrest to the Mexican Federal Judicial Police in the same jurisdi ction for service.

Because of the close working relationship that FPU enjoys with Mexico's Office of International Affairs, Mexican federal prosecutors keep FPU agents informed of each step during the process and convey the status of the case from the issuance of the arrest warrant to apprehension of the fugitive and, finally, the conviction and sentencing. However, Mexican prosecutors cannot predict how long the prosecution of an Article IV will take, inasmuch as each prosecution depends, among other things, on the underlying facts of the case. The trial generally will occur before a single judge, and no live testimony is taken. Jury trials rarely occur, if ever, in an Article IV prosecution. A convicted defendant can appeal a judge's finding at any stage. Most Article IV prosecutions, however, do result in conviction, according to the results that FPU has received. When the defendant is convicted, the Mexican judge will sentence the defendant according to Mexican penal law, and the defendant serves the sentence in Mexico. FPU has received Article IV homicide sentences ranging from 15 to 50 years in the Mexican penal system.

Conclusion

For many U.S. law enforcement officials, extradition stands as the traditional and preferred method to seek justice when a wanted suspect flees their jurisdiction after committing a serious or violent crime. In cases where a Mexican national returns to Mexico, U.S. law enforcement officers may seek justice through Article IV of the Mexican Federal Penal Code. The California Department of Justice, California Bureau of Investigation, Foreign Prosecution Unit can assist U.S. law enforcement agencies initiate, prepare, and file Article IV criminal complaints against Mexican citizens who commit violent crimes in the United States. Article IV constitutes another tool for the criminal justice community to employ in its fight against criminals who prey on Americans and then seek refuge from justice in their home country.

Endnotes

(1.) To obtain information about other countries that have similar laws, with varying guidelines and criteria, contact the U.S. Department of Justice, Office of International Affairs in Washington, D.C., at 202-514-0000 or at the agency's Web site at http://ww.usdoj.gov/criminal/oia.html.

(2.) Agencies can contact the California Department of Justice, California Bureau of Investigation, Foreign Prosecution Unit at 858-268-5400.

(3.) If agencies need extradition information, they should contact the U.S. Department of Justice, Office of International Affairs (OIA) in Washington, D.C., at 202-514-0000. OIA trial attorneys can answer questions about extradition issues, as well as provide information on international law and foreign prosecution.