United States of America v. Sosa, 2011 ABQB 534

Court of Queen ’ s Bench of Alberta Citation: United States of America v. Sosa, 2011 ABQB 534 Date: 20110902 Docket: 110065638X1 Registry: Calgary IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 15 OF THE EXTRADITION ACT FOR AN ORDER FOR THE COMMITTAL OF JORGE SOSA Between: The Attorney General of Canada (On behalf of the United States of America) Applicant - and - Jorge Sosa, also known as “ Jorge Vinicio Sosa Orantes ” Respondent _______________________________________________________ Reasons for Judgment of Chief Justice Neil Wittmann _______________________________________________________ INTRODUCTION [ 1 ] An Authority to Proceed was issued pursuant to section15 of the Extradition Act , SC 1999, c.18 by the Minister of Justice for Canada (“the Minister”) authorizing the Attorney General of Canada to come before this Court to seek an Order for the committal of Jorge Sosa, also know as “Jorge Vinicio Sosa Orantes” (“Sosa”).

Sosa is a person sought for prosecution by the United States of America and the Authority to Proceed states that the Canadian offence corresponding to the alleged conduct is perjury, contrary to

section 131 of the Criminal Code , R.S.C.1985, c.C-46.

EXTRADITION ACT PROVISIONS [ 2 ]

Section 2 of the Extradition Act (“the Act ”) contains

definitions. The relevant

definitions are: “extradition agreement” means an agreement that is in force, to which Canada is a party and that contains a provision respecting the extradition of persons, other than a specific agreement. “extradition partner” means a State or entity with which Canada is party to an extradition agreement, with which Canada has entered into a specific agreement or whose name appears in the schedule. [ 3 ]

Section 3 states as follows: 3.

(1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on — or enforcing a sentence imposed on — the person if (

a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and (

b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada, (

i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and (ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.

(2) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada. [ 4 ]

Section 15 states as follows: 15.

(1) The Minister may, after receiving a request for extradition and being satisfied that the conditions set out in paragraph 3(1)(

a) and subsection 3(3) are met in respect of one or more offences mentioned in the request, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the extradition partner, an order of a court for the committal of the person under

section 29.

(2) If requests from two or more extradition partners are received by the Minister for the extradition of a person, the Minister shall determine the order in which the requests will be authorized to proceed.

(3) The authority to proceed must contain (

a) the name or description of the person whose extradition is sought; (

b) the name of the extradition partner; and

(

c) the name of the offence or offences under Canadian law that correspond to the alleged conduct of the person or the conduct in respectof which the person was convicted, as long as one of the offences would be punishable in accordance with paragraph 3(1)(b).

(4) A copy of an authority to proceed produced by a means of telecommunication that produces a writing has the same probative force asthe original for the purposes of this Part. [5]

Section 29 states as follows: 29.

(1) A judge shall order the committal of the person into custody to await surrender if (

a) in the case of a person sought for prosecution, there is evidence admissible under this Act of conduct that, had it occurred in Canada,would justify committal for trial in Canada on the offence set out in the authority to proceed and the judge is satisfied that the person isthe person sought by the extradition partner; and ...

(2) The order of committal must contain (

a) the name of the person; (

b) the offence set out in the authority to proceed for which the committal is ordered; (

c) the place at which the person is to be held in custody; and (

d) the name of the extradition partner.

(3) A judge shall order the person discharged if the judge does not order their committal under subsection (1). [6] The most prominent applicable sections are quoted above. In addition, there have been many judicial decisions to guide theextradition judges conducting an extradition hearing. Cited to me by counsel for the Applicant are the following cases: U.S.A. v.Shepherd (1976), (SCC), 30 C.C.C. (2d) 424 (S.C.C.); Re U.S.A. and Smith (1984), (ON CA), 10C.C.C. (3d) 540 (Ont. C.A.); The Republic of Argentina v. Mellino, (SCC), [1987] 1 S.C.R. 536; Schmidt v. The Queen, (SCC), [1987] 1 S.C.R. 500; U.S.A. v.

Cotroni, (SCC), [1989] 1 S.C.R. 1469; Re Kindler and Ministerof Justice, (SCC), [1991] 2 S.C.R. 779; U.S.A. v. McVey, (SCC), [1992] 3 S.C.R. 475; Pacificador andRepublic of the Philippines (1993) (ON CA), 83 C.C.C. (3d) 210 (Ont. C.A.); Supreme Court Act,

Section 40; U.S.A.v. Lepine, (SCC), [1994] 1 S.C.R. 286; U.S.A. v. Wong (1995), (BC CA), 98 C.C.C. (3D) 332(B.C.C.A); R. v. Nikolovski (1996), (SCC), 111 C.C.C. (3d) 403 (S.C.C.); U.S.A. v. Dynar, (SCC),[1997] 2 S.C.R. 462; U.S.A. v. Drysdale, (ON SC), [2000] O.J. No. 214 (Ont. S.C.); Germany v. Schreiber, [2000]O.J. No. 2618 (Ont. S.C.J.); U.S.A. v. Cobb, 2001 SCC 19 , [2001] 1 S.C.R. 587; U.S.A. v. Kwok, 2001 SCC 18 , [2001]1 S.C.R. 532; R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828; U.S.A. v. Yang (2001), (ON CA), 157C.C.C. (3d) 225 (Ont. C.A.); United States of America v.

McDowell (2004), (ON CA), 183 C.C.C. (3d) 149 (Ont.C.A.); U.S.A. v. Shulman (2001), 2001 SCC 21 , 152 C.C.C. (3d) 294 (S.C.C.); U.S.A. v. Kucan, (ON CA),[2001] O.J. No. 4162 (Ont. C.A.); U.S.A. v. Kavaratzis (2004), (ON CA), 182 C.C.C. (3d) 176 (Ont. C.A.); CzechRepublic v. Moravek (2004), 2004 MBCA 174 , 190 C.C.C. (3d) 142 (Man. C.A.); U.S.A. v. McAmmond (2005), (ON CA), 192 C.C.C. (3d) 149 (Ont. C.A.); U.S.A. v. Mach, [2006] O.J. No. 3204 (Ont. S.C.J.); U.S.A. v. Ferras; U.S.A. v. Latty,2006 SCC 33 , [2006] 2 S.C.R. 77; U.S.A. v. Hulley, 2007 BCSC 240, [2007] B.C.J. No. 338; U.S.A. v.

Anderson (2007), 2007ONCA 84 , 218 C.C.C. (3d) 225 (Ont. C.A.); U.S.A. v. Gunn, 2007 MBCA 21, [2007] M.J. 131; Germany (Republic) v. Bushati,2007 ABQB 592, [2008] 6 W.W.R. 519; United States of American v. Anekwu, 2009 SCC 41; United States v. Saad (2004), (ON CA), 237 D.L.R. (4th) 623; Canada (Justice) v. Fischbacher, 2009 SCC 46. Counsel also put a number of authorities beforeme on the issue of perjury as follows: Courval v. The Queen (1957), (QC CA), 25 C.R. 239; R. v. Kovacs, 1974 ABCA34 , [1974] 3 W.W.R. 562; Calder v. R., (SCC), [1960] S.C.R. 892; R. v. Wolf, (SCC), [1974]6 W.W.R. 368; R. v.

Buzeta, CRIMJ(P) 5848/00, 20030404 (ON SC); R v. Seath, 2000 ABCA 174; R. v. Boisjoly, (1970) 11 CRMS 265;aff’d (SCC), [1972] S.C.R. 42. [7] Canada and the United States have entered into a bilateral extradition treaty. Therefore, they are extradition partners. Thereis no substantive disagreement with respect to the extradition framework as articulated in the authorities and the Act. The generalprinciples include the following:

1. The jurisdiction of an extradition judge is statutory, derived solely from the Extradition Act . 2. The concept of double criminality is central to the scheme of the Act. The extradition judge is concerned only with domestic criminality to determine only whether the conduct disclosed by the evidence of the requesting state amounts to the Canadian offence stated in the Authority to Proceed. 3. Foreign criminality is determined by the Minister as a condition of issuing an Authority to Proceed. 4.

An extradition hearing is not a trial but is rather intended to be an expedited process to determine whether a trial should be held in the requesting state and in this regard, the inquiry is whether there is sufficient evidence to warrant sending the person sought to the requesting state. 5. An extradition judge does not have the jurisdiction to consider or deal with defences that could be raised by the person sought at a trial. 6. A duly certified Record of the Case (“ROC”) conclusively determines that the contents of documents contained in the ROC are admissible into evidence at the extradition hearing. 7.

The obligation of the requesting state is to establish a prima facie case for the committal of the person sought. 8. The test to determine the sufficiency of the evidence at an extradition hearing is akin to that necessary at a preliminary inquiry in order to commit for a trial. The application of this test includes a limited weighing of the evidence by the extradition judge to determine whether there is a plausible case.

This test also incorporates an inquiry into the reliability of the evidence to the extent that if the evidence is “manifestly unreliable” such that it would be unsafe to ground a verdict on it, that evidence will not be used to make an Order of Committal. THE RECORD OF THE CASE AND THE EVIDENCE [ 8 ] All of the evidence presented at this hearing was by way of a Certified ROC which was tendered without objection by counsel for Sosa. [ 9 ] The evidence contained in the ROC includes a factual

summary, and the details of expected testimony from a number of witnesses. Factual

Summary [ 10 ] Sosa had been a member of the Guatemalan Army, and specifically, served as a sub-lieutenant of an elite unit known as the “Kaibiles.” The Kaibiles were trained at a facility located in La Pólvora, Guatemala, known as “the Kaibil School.” In early December 1982, a special patrol of approximately 20 Kaibiles from the Kaibil School, including Sosa, was deployed to the village of La Dos Erres, Guatemala to recover approximately 20 or 21 rifles that had been stolen from a Guatemalan Army convoy by guerrillas. The special patrol had been led to believe that rifles would be located in Dos Erres.

In or around December 7, 1982, this special patrol entered Dos Erres, and massacred the men, women and children there by, among other means, hitting them in the head with a sledgehammer and throwing them into the village well. Members of the special forces unit also forcibly raped girls and young women at Dos Erres before killing them. [ 11 ] In order to become a United States citizen, Sosa completed an Application for Naturalization (Form N-400).

On his Form N- 400, Sosa answered “no” to the question of whether he had ever committed a crime or offense for which he had not been arrested, even though in truth and in fact, Sosa knew that he had committed crimes, including murder, at the village of Dos Erres. Sosa also failed to list his membership in the Guatemalan military in answer to a question that asked the applicant to list any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place of which he was a member or with which he was associated.

Finally, Sosa answered “no” to the question on the Form N-400 that asked whether he had ever given false or misleading information to any U.S. government official while applying for any immigration benefit, when in truth and in fact, Sosa had answered “NONE” in response to a question asking him to list past memberships, to include foreign military service, on his earlier Application to Register for Permanent Residence or Adjust Status (Form I-485), and affirmed that answer in an interview with a U.S. Citizenship and Immigration Services (“USCIS”) officer in connection with his Form I-485.

Sosa certified, under penalty of perjury, that the answers he provided on his Form N-400 were true and correct.

[ 12 ] Sosa was also interviewed by a naturalization examiner - under oath - in connection with his Form N-400, on or about March 18, 2008. During this interview the naturalization examiner reviewed with Sosa his answers to the questions on the Form N-400 to ensure that his answers remained the same and that there were no changes. At the time of the interview, Sosa again swore and certified under penalty of perjury that he knew the content of the Form N-400, and that the answers he provided, including any changes, were true and correct to the best of his knowledge and belief.

Witnesses ’ Testimony [ 13 ] The ROC contained the details of the expected testimony of 3 confidential witnesses, so called, because of concerns for their safety and the safety of their families. The 3 confidential witnesses will testify that each was a soldier in the Guatemalan Army assigned to the Kaibil School and the Special Patrol deployed to the village of Las Dos Erres in December 1982.

Further, that each knew an individual by the name of Sosa who was one of the Commanding Officers of the Special Patrol; that the Special Patrol was formed for the purpose of fighting guerrillas; that the Special Patrol attended at the village for the purpose of retrieving rifles that were stolen by the guerrillas; that upon their attendance at Las Dos Erres, all of the men, women and children were killed on the order of the Commanding Officers, including Sosa. [ 14 ] Each will testify as to the details of the killings and that no resident resisted; that many of the children were killed first by leading them to a well and hitting them on the head with a sledgehammer.

Each will testify that some members of the Special Patrol raped young girls and women before killing them and that Sosa hit people on the head with a sledgehammer. Two confidential witnesses will say they saw Sosa throw a grenade into the well and fire his weapon into the well.

Forensic Expert Witness [ 15 ] A member of the Argentine Forensic Anthropology Team conducted the exhumation of remains in the well and on the surface at Dos Erres is expected to testify that the forensic team extracted 162 remains from the well and another nine skeletal remains from two surface sites; that many were children under the age of 12.

USCIS (United States Citizenship and Immigration Services) Officer John Isoldi [ 16 ] This USCIS Officer is expected to testify that on November 30, 1998 while working at the USCIS office in New York, New York, his duties included conducting interview of persons who had filed Applications to Register Permanent Residence or Adjust Status (I-485). This form requires the applicant to answer a number of questions.

Amongst the questions asked was that the applicant list present or past memberships in or affiliations with every political organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place since their 16 th birthday, including foreign military service, and if none, to write “none”. Sosa answered “none” to this question on Form I-485, November 30, 1998. He was also required to sign the form to certify under penalty of perjury under the laws of the United States that the application and the evidence submitted with it was all true and correct.

In addition, USCIS Officer John Isoldi will testify as to the identity of Sosa by virtue of photographic comparisons. USCIS Officer Rony Figueroa [ 17 ] USCIS Officer Rony Figueroa was working at the San Bernardino, California office of USCIS on March 18, 2008 and his handwriting indicates that on that date he interviewed Sosa and determined during the interview that his oral answers were the same as the written answers on Sosa’s Form N0400.

Although he had no personal recollection of the interview, his regular practice included the review of the immigration file and asking each of the questions on the N-400 form, which is an application for naturalization.

The N-400 requires applicants to answer various questions as to whether he had ever been a members of or associated with any “organization, association, fund, foundation, party, club, society or similar group in the United States or in any other place?” Sosa checked “Yes” and listed only “World Union Budo Sosa-Kai”. [ 18 ] On March 18, 2008, there was no specific question asked about foreign miliary service or military service. There was a question on Form N-400 as to whether the applicant “has ever committed a crime or offence for which he or she has not been arrested” to

which Sosa answered “no”. Form N-400 also contained a statement that Sosa signed and certified “under penalty of perjury under the laws of the United States of America, that this application, and the evidence submitted with it, are all true and correct.” He affirmed this in the interview and the invariable practice of Figueroa is to place the applicant under oath before conducting the interview. Sosa was also asked whether in completing the N-400 form whether he had ever given false or misleading information to any U.S.

Government Official while applying for any immigration benefit to which he answered “no”, both in the oral interview and on Form N-400. Other Evidence [ 19 ] The ROC further discloses that an Immigration and Customs Enforcement (“ICE”) Special Agent (“SA”) Preston Ober was involved in executing a search warrant at Sosa’s home in May 2010 during which a number of items were seized.

Those items include: several pictures of Sosa in military uniform including a picture of him with a Kaibil beret, several pictures of Kaibiles wearing a Kaibil beret and Kaibil shirts, Sosa’s diploma to become an officer in the Guatemalan military, a card bearing Sosa’s name from the Guatemala Sankukai Karate-Do.

In addition, Guatemalan records obtained pursuant to a Mutual Legal Assistance Treaty show that Criminal Trial Court of San Benito Petén in Guatemala issued an arrest warrant on April 6, 2000 for Sosa for the crime of murder; that Sosa served in the Guatemalan military from January 1976 to May 1985; that he served as an instructor at the Kaibil School; that Sosa’s Guatemalan national identification card includes date of birth March 7, 1958, the same date disclosed on his expired Canadian Passport which is attached as Exhibit 3 to the ROC. THE ELEMENTS OF PERJURY:

SECTION 131 OF THE CRIMINAL CODE [ 20 ]

Section 131 of the Criminal Code states as follows: 131.

(1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false. [ 21 ] The authorities clearly establish that the elements of the offense of perjury are: 1. A person making a false statement under oath or affirmation by affidavit, solemn declaration or deposition or orally. 2. The person making the false statement knowing that the statement was false. 3. The person who made the false statement knowing it was false with intent to mislead. [ 22 ]

Section 132 of the Criminal Code states that every one who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Section 133 of the Criminal Code states that no person shall be convicted of an offence under

section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused. ANALYSIS [ 23 ] At the heart of modern extradition law in Canada, is the principle of double criminality. A concise explanation of the concept is set forth in Fischbacher at paragraphs 25-27 . Reference is made to section 3(1)(

a) of the Act which has codified the foreign aspect of double criminality and paragraph (

b) of section 3(1) describing the domestic aspect of double criminality which requires that the conduct giving rise to the foreign offence amount to a criminal offence under Canadian law with a specific penalty. Both the foreign and domestic elements must be satisfied. [ 24 ] But the foreign element is satisfied once the Minister makes a determination as required in section 15(1) and paragraph 3(1) (

a) of the Act . It will be remembered that section 15(1) states that the Minister may issue an authority to proceed if he is satisfied that the conditions set out in paragraph 3(1)(

a) and subsection 3(3) are met in respect of the offences mentioned in the request. Once the Minister makes his determination, the foreign component of double criminality is satisfied: Fischbacher , paragraph 30 .

[ 25 ] The remaining function of an extradition judge at the hearing is to determine whether that the domestic component of double criminality is satisfied as required by section 3(1)(

b) of the Act because the Minister has already established that the foreign component of double criminality is satisfied: Fischbacher , paragraph 35 . [ 26 ] Turning to the domestic aspect as mandated, I must determine whether the evidence in the ROC is capable of supporting a conviction for perjury pursuant to

section 131 of the Criminal Code . Sosa has argued, through his counsel, that there is no evidence to suggest that the USCIS Officer Figueroa asked Sosa whether he had been in the military when conducting the March 18, 2008 interview. Sosa was asked the question about foreign military service when he filled out his form I-485 on November 30, 1998.

That form contained a clause that required Sosa to certify under penalty of perjury under the laws of the United States, that the application and evidence submitted with it was all true and correct. [ 27 ] When USCIS Officer Figueroa put Sosa under oath on March 18, 2008, Sosa was asked whether he had ever given false or misleading information to any U.S. government official while applying for any immigration benefit to which he answered “no” both in the oral interview and on Form N-400. Prima facie , I find that Sosa made a false statement, that he knew it was false and he made it with intent to mislead.

Proof of those elements is discussed in Courval where Pratte, J. stated that evidence establishing replies to questions are false will raise the presumption that the accused knew them to be false and that once an accused swears to false evidence with knowledge of the facts, it is with intention to deceive because people only lie for the purpose of misleading (paragraph 32). [ 28 ] Sosa has argued that USCIS Officer Figueroa on March 18, 2008, did not specifically asked Sosa whether he had been in the military and that there is no evidence of this.

In my view, the lack of that evidence is not essential to sustaining a prima facie case for perjury. [ 29 ] The second issue involves the question as to whether Sosa “has ever committed a crime or offence for which he or she has not been arrested” on Form N-400 and to which he answered “no”. He made the same answer when placed under oath by USCIS Officer Figueroa on March 18, 2008.

The form he signed and certified was “under penalty of perjury under the laws of the United States of America, that this application and the evidence submitted with it, are all true and correct”. [ 30 ] Sosa has argued a number of points on this issue which are, in reality, potential defences to the perjury charge on this aspect of the matter; namely that he forgot what he had said on Form I-485 about the answer with respect to foreign military service, that he acted out of ignorance, error or carelessness, or the error was that of the person that prepared the document, not Sosa. [ 31 ] Sosa further argues that the prosecution would have to prove that the incident at Dos Erres occurred, that it constituted an offence, that Sosa was present and involved and that he had some control over the incident, that he bore culpability, that he knew his engagement constituted a crime or an offence. [ 32 ] The evidence of the massacre at Dos Erres clearly establishes that Sosa was present and involved; that he actively participated in the killings with a sledgehammer, with a firearm and a grenade.

The evidence also clearly establishes that he was one of the commanding officers that took the decision to slaughter 171 men, women and children. [ 33 ] It is difficult for this Court to comprehend the murderous acts of depraved cruelty on the scale disclosed by the evidence. This conduct is criminal in any civilization. When Sosa was asked the question about whether he has ever committed a crime for which he had not been arrested, he knew, based on the evidence in the ROC, what his involvement at Dos Erres was and made a false statement about it knowing it to be false and with intent to mislead.

The corroboration element in

section 133 of the Criminal Code of Canada is satisfied in the instance of the statements about foreign military service and making false statements to a U.S. Immigration Officer by completion of the forms and by the interview under oath. The statement about the crime is similarly corroborated. CONCLUSION [ 34 ] Pursuant to

section 29 of the Act , I order Sosa into custody to await surrender on the basis that there is evidence admissible under the Act of the conduct I have described, that had it occurred in Canada would justify committal for trial in Canada on the offence of perjury pursuant to

section 131 of the Criminal Code as set out in the Authority to Proceed.

[ 35 ] Further, I am satisfied, as I must be, that Sosa is the person sought by the extradition partner.

His identity was admitted through his counsel by agreement at the beginning of this hearing. [ 36 ] The Order of Committal will contain Sosa’s full name, the offence set out in the Authority to Proceed for which the committal is ordered, the place at where Sosa is to be held in custody as well as the name of the extradition partner, namely the United States of America. [ 37 ] Pursuant to section 38(2) of the Act , I am required to inform Sosa that he will not be surrendered until after the expiry of 30 days from the date of the Order of Committal, that he has a right to appeal the Order and to apply for judicial interim release.

Heard on the 29 th day of August, 2011. Delivered on the 2 nd day of September, 2011. Dated at the City of Calgary, Alberta this 2 nd day of September, 2011. Neil Wittmann C.J.C.Q.B.A. Appearances: Cynthia Dickins and Damon D. Park for the Attorney General of Canada, representing the United States of America for the Applicant Alain Hepner, Q.C. and Maureen A. McConaghy, Q.C. for the Respondent