COURT OF APPEALS OF VIRGINIA
Present: Judges Friedman, Raphael and White UNPUBLISHED
Argued at Richmond, Virginia
HEBER OTONIEL LUNA CONTRERAS MEMORANDUM OPINION* BY v. Record No. 1753-24-2 JUDGE KIMBERLEY SLAYTON WHITE MARCH 10, 2026 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY James S. Yoffy, Judge Designate
Brendan D. O’Toole (Elwood Earl Sanders, Law Office of Elwood Earl Sanders, on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.
This case is about whether the criminal prosecution of a defendant for felony murder is
permitted under the U.S. extradition treaty with Guatemala and what consequences follow from
such a determination. Following a serious car wreck on August 8, 2020 resulting in several
injuries and one death, appellant Heber Otoniel Luna Contreras was charged with felony hit and
run (Code § 46.2-894), felony driving under the influence – third offense (Code § 18.2-266;
Code § 18.2-270), felony driving on a suspended license (Code § 46.2-391), and felony murder
(Code § 18.2-33). After the accident occurred and before he could be apprehended, Luna
Contreras fled to Mexico and then to Guatemala, escaping the reach of Virginia courts. To bring
him back for prosecution, the Commonwealth, in consultation with the U.S. Department of
Justice and the U.S. Department of State, extradited Luna Contreras pursuant to the “Treaty for
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. the mutual extradition of fugitives from justice” between the U.S. and Guatemala (“Treaty”).
See U.S.-Guat., Feb. 27, 1903, 37 Stat. 2147-56. Once back in the United States, the
Commonwealth brought Luna Contreras to trial, but in compliance with the Treaty, the charges
were limited to felony murder pursuant to Code § 18.2-33. Luna Contreras makes nine
assignments of error, which we consolidate into four main claims: (1) his conviction was in error
because felony murder is not an enumerated crime for which one can be extradited and
prosecuted under the Treaty; (2) his conviction was in error because, to prove all the elements of
the crime, the Commonwealth would have to prove violations of crimes that are not enumerated
in the Treaty—namely, traffic or other offenses that satisfy the element of malice; (3) the warrant
upon which Luna Contreras was extradited was based on a non-offense and his conviction
violated the doctrine of specialty; and (4) either or both the warrant and the indictment of Luna
Contreras cite a non-offense under Virginia law as the basis of the extradition and conviction.
Since none of the facts surrounding the events of August 8, 2020 are in dispute here, we
sketch those very briefly before describing the facts pertinent to the issues on appeal. We then
address the merits of Luna Contreras’ assignments of error, providing additional facts from the
record pertinent to each.
I. BACKGROUND
On the morning of the fatal crash, an eyewitness called authorities to report a black Jeep
Wrangler on Patrick Henry Road “driving erratically and expelling beer cans and bottles out of
its windows.” Luna Contreras was the driver of the Wrangler. Minutes later, several calls came
in reporting that the Wrangler had veered into oncoming traffic and sideswiped a Jeep Cherokee.
The Wrangler moved back into its own lane but then veered into oncoming traffic again and hit a
Subaru Outback head-on. The airbags deployed in both vehicles, the vehicles ran off the road,
and the Outback caught on fire. One passenger was ejected from the Wrangler and died at the
-2- hospital from blunt force trauma to the head. At least one other passenger was injured. Several
witnesses reported that Luna Contreras fled the scene and, though he was spotted later that same
day, he escaped to Mexico and then to Guatemala.
Luna Contreras was found in his native Guatemala and extradited on a warrant of arrest.
The warrant cited Code § 18.2-33 as the basis for the extradition along with the very brief
explanation of the charge: “accidentally kill and murder Jonathan Rioz Perez in the second
degree while in the commission of a felony.” At a preliminary hearing, the Commonwealth
dropped all but one charge—Code § 18.2-33 felony murder—from the district court because of
the Treaty restrictions. Luna Contreras was indicted February 21, 2023, on one count of felony
murder.
Based on issues pertaining to the extradition treaty, Luna Contreras filed a motion to
dismiss the charges on September 14, 2023. At a hearing that same day, he made multiple
contentions relating to the assignments of error here, including (a) that the felony murder charge
does not constitute voluntary homicide and that non-voluntary homicide is not extraditable
according to the treaty; (b) that the predicate traffic felony is not an extraditable charge; (c) that
the warrant failed to state an offense; and (d) that the conviction violates the specialty doctrine.
At the same hearing, the Commonwealth argued that the propriety of the extradition is best left
in the judgment of the extraditing country and that the conviction did not violate the specialty
doctrine because all relevant documents cited Code § 18.2-33 as the basis for the extradition and
conviction. The hearing was continued to December 1, 2023 in order to procure documents for
the record. At that hearing, the trial court ruled in favor of the Commonwealth on the
preliminary issues related to the treaty. At a December 7, 2023 hearing, Luna Contreras waived
his right to a speedy trial. After several continuances, the trial was set for November 21-22,
2024.
-3- On October 17, 2024, the trial court set a hearing to address a new motion to reconsider
the issues regarding the extradition treaty that added concerns about violations of the specialty
doctrine. At that hearing, the trial court rejected the motion. Thereafter, the Commonwealth and
Luna Contreras entered into a plea agreement. The agreement required him to plead guilty to
felony murder pursuant to Code § 18.2-33, but allowed him to preserve all arguments “relating to
the extradition of [Luna Contreras] and/or treaty between the United States and Guatemala . . .”
The resulting sentence would be 20 years of incarceration, with 15 years and 4 months
suspended, conditioned on good behavior for 20 years. The Commonwealth would rely on the
driving while suspended crime as the predicate for the felony murder charge, since his license
was revoked based on two previous DUI convictions.
The trial court swore in Luna Contreras, verified that he understood the agreement,
accepted the plea agreement, and sentenced him accordingly. It entered a final order on
November 12, 2024. He now appeals.
II. ANALYSIS
A. The Sufficiency of the Warrant as the Basis for Extradition (Assignment of Error 1)
The most significant assignment of error for this case stems from the claim that Luna
Contreras was prosecuted based on a violation of a bilateral extradition treaty between the United
States and Guatemala. “It is . . . very clear that . . . it was not intended that this [extradition] treaty
should be used for any other purpose than to secure the trial of the person extradited for one of the
offences enumerated in the treaty.” United States v. Rauscher, 119 U.S. 407, 420 (1886). The
pertinent questions we now review are (a) whether the extradition violated the treaty by relying on
an offence not enumerated in the treaty, and (b) whether, even if it did violate the treaty, this Court
ought to defer to the courts of Guatemala by honoring their determination that the extradition was
appropriate. Because the latter is dispositive, we begin the analysis there.
-4- International treaties in which the United States is a party are the supreme law of the land
and all judges are bound by them. U.S. Const. art. 6, cl. 2. “[A] treaty is ‘equivalent to an act of
legislature,’ and hence self-executing, when it ‘operates of itself without the aid of any legislative
provision.’” Medellin v. Texas, 552 U.S. 491, 505 (2008) (quoting Foster v. Neilson, 27 U.S. 253,
315 (1829)). “Treaties of extradition are deemed self-executing and therefore equivalent to an act of
legislature.” M. Cherif Bassiouni, International Extradition: United States Law and Practice 35 (3d
ed. 1996) (quoted in Cheung v. United States, 213 F.3d 82, 93 (2nd Cir. 2000)).
“Where an issue ‘turns entirely upon a question of law, we review the circuit court’s
decision de novo.’” Heald v. Rappohannock Elec. Coop., 80 Va. App. 53, 74 (2024) (quoting
Heron v. Transp. Cas. Ins. Co., 274 Va. 534, 538 (2007)). “To the extent the Court’s analysis
involves statutory interpretation, questions of statutory construction are also reviewed under a de
novo standard.” Rosson v. Erie Ins. Exch., 79 Va. App. 266, 277 (2023) (quoting Ruderman v.
Pritchard, 76 Va. App. 295, 302 (2022)); see also United States v. Merit, 962 F.2d 917, 919 (9th
Cir. 1992) (“We review de novo questions regarding interpretation of, and jurisdiction under, the
[extradition] treaty, including compliance with dual criminality and specialty requirements.”).
Luna Contreras argues that felony murder as articulated in Virginia statute is not included in
the enumerated crimes upon which one may be permissibly extradited from Guatemala, partly
because he believes the enumerated homicides all involve a malice element that felony murder does
not have. Though there is no Virginia or Fourth Circuit federal precedent addressing the specific
facts of this case, deferential principles pervading international law and applied in other United
States jurisdictions indicate that we ought to take Guatemala’s judgment as controlling on this issue.
Even if Virginia’s felony murder statute did not fit within the meaning of the Treaty, we are
obligated to defer to the judgment of authorities in Guatemala.
-5- There is a long tradition across jurisdictions of giving deference to the asylum country’s
judgment in extraditing a person. This deference is related to the purposes of extradition treaties, as
illustrated in Rauscher and elsewhere. “[A]n explicit purpose of the treaty in Rauscher was to
govern ‘the giving up of criminals, fugitives from justice in certain cases.’” United States v.
Jimenez-Nava, 243 F.3d 192, 197 (5th Cir. 2001). “Further, courts have consistently analyzed
alleged extradition treaty violations as jurisdictional challenges.” United States v. Saccoccia, 18
F.3d 795, 801 (9th Cir. 1994). “[I]t is impossible to conceive of the exercise of jurisdiction in [an
extradition] case for any other purpose than that mentioned in the treaty . . . without an implication
of fraud upon the rights of the party extradited, and of bad faith to the country which permitted his
extradition.” Rauscher, 119 U.S. at 422 (emphasis added).
On that jurisdictional issue, “the question of whether an extradition treaty allows prosecution
for a particular crime that is specified in the extradition request is a matter for the extraditing
country to determine.” United States v. Campbell, 300 F.3d 202, 209 (2nd Cir. 2002). “[O]ur
courts cannot second-guess another country’s grant of extradition to the United States.” Id. While
there is no case precedent in the federal Fourth Circuit regarding this question, Campbell has been
cited favorably on these issues by the Second, Fifth, Eighth, Ninth, and D.C. Circuit Courts of
Appeals. See United States v. Bout, 731 F.3d 233 (2nd Cir. 2013); United States v. Frankel, 443
Fed. Appx. 603 (2nd Cir. 2011); United States v. Wharten, 320 F.3d 526 (5th Cir. 2003); Graham v.
Young, 886 F.3d 700 (8th Cir. 2018); Benitez v. Garcia, 449 F.3d 971 (9th Cir. 2006); United States
v. Trabelsi, 845 F.3d 1181 (D.C. Cir. 2017). Further, according to the United States Supreme Court,
“[w]hether the crime came within the provision of the treaty was a matter for the decision of the
[extraditing country’s] authorities.” Johnson v. Browne, 205 U.S. 309, 316 (1907). Finally, “we
hold that there is no basis to conclude that [the asylum country] was or had reason to be offended by
-6- this prosecution and, hence, this prosecution does not constitute a breach of the treaty provisions.”
United States v. Kaufman, 858 F.2d 994, 1009 (5th Cir. 1988).
Freedoms and limitations surrounding the extradition process are not haphazard; rather they
are based on well-established principles. The principle of specialty protects both the extradited
person and the sovereignty of the asylum country.2 See Rauscher, 119 U.S. at 422 (explaining that
the principle prohibits prosecution of any crime other than that upon which a person was extradited
so as to avoid “fraud upon the rights of the party extradited” and “bad faith to the country which
permitted his extradition”). The principle of dual criminality protects strong international relations
by ensuring that the conduct for which a person is extradited is criminal in both the asylum country
and the requesting country. See United States v. Soto-Barraza, 947 F.3d 1111, 1117 (9th Cir. 2020)
(“[T]he ‘“essential character” of the acts criminalized by the laws of each country’ must be the
same, and the laws ‘substantially analogous.’” (quoting Manta v. Chertoff, 518 F.3d 1134, 1141 (9th
Cir. 2008))). The principle of non-inquiry, “shaped by concerns about institutional competence and
by notions of separation of powers,” prevents courts from “investigating the fairness of a requesting
nation’s justice system.” United States v. Lui Kin-Hong, 110 F.3d 103, 111 (1st Cir. 1997).
More importantly here, the principle of comity and the presumption of regularity limit the
ability of a requesting country to challenge the propriety of the asylum country’s decision to
extradite a person. “U.S. courts will defer to the judgment of foreign courts construing their own
laws . . . . International comity remains important in this context.” Trabelsi, 845 F.3d at 1192-93.
“It could hardly promote harmony to request a grant of extradition and then, after extradition is
granted, have the requesting nation take the stance that the extraditing nation was wrong to grant the
request.” Campbell, 300 F.3d at 209. When a person is “extradited on the basis of comity between
2 Luna Contreras relies on this principle in an assignment of error addressed below. -7- nations,” “[t]he purpose of the rule . . . is to preserve the requesting nation from a breach of faith
against the requested nation.” Kaufman, 858 F.2d at 1008.
Our own Supreme Court has recognized international comity as “the recognition which one
nation allows within its territory to the legislative, executive or judicial acts of another nation,
having due regard both to international duty and convenience, and to the rights of its own citizens or
of other persons who are under the protection of its laws.” Oehl v. Oehl, 221 Va. 618, 622 (1980).
“Virginia courts should grant comity to any order of a foreign court of competent jurisdiction,
entered in accordance with the procedural and substantive law prevailing in its judicatory domain,
when that law, in terms of moral standards, societal values, personal rights, and public policy, is
reasonably comparable to that of Virginia.” Id. at 623. The comparable law in Virginia would be
those statutes governing its extradition procedures as the asylum state. According to Virginia
statute, “The guilt or innocence of the accused as to the crime of which he is charged may not be
inquired into by the Governor or in any proceeding after the demand for extradition . . . except as it
may be involved in identifying the person held as the person charged with the crime.” Code
§ 19.2-106. Rather, the relevant information to be ascertained by the Governor is “that the accused
was present in the demanding state at the time of the commission of the alleged crime and that
thereafter he fled from such state.” Code § 19.2-87. The only documentation required is an
authenticated “indictment, information or affidavit made before the magistrate [that] must
substantially charge the person demanded with having committed a crime under the law of that
state.” Id. As the Virginia Extradition Manual plainly states, in the review for legal sufficiency
“[t]wo crucial things are looked for: 1) whether the fugitive is, in fact, charged with a crime in
the demanding state; and 2) whether the person arrested is the fugitive.” Secretary of the
Commonwealth of Virginia, Virginia Extradition Manual 6 (2025). Further, “[t]he Governor’s
office will not examine issues of probable cause for the charge. Nor will it consider other
-8- defenses such as alibi or self[-]defense. These issues are considered matters between the fugitive
and the demanding state.” Id.
The presumption of regularity, in our own and other jurisdictions, bolsters considerations
of comity and affirms the need for inter-governmental deference. “The presumption of regularity
is founded on inter-branch and inter-governmental comity, not our own judicial expertise with
the relevant government conduct.” Latif v. Obama, 677 F.3d 1175, 1182 (D.C. Cir. 2012).
Similarly to the United States Supreme Court’s determination upon petition for habeas corpus
that “[p]rima facie[, the petitioner is] in lawful custody and upon him rest[s] the burden of
overcoming this presumption by proof,” it has also concluded that “collateral review of an
international extradition order should begin with the presumption that both the order and the
related custody of the fugitive are lawful.” Skaftouros v. United States, 667 F.3d 144, 158 (2nd
Cir. 2011) (alterations in original). In the face of challenges to the proceedings of a committee
of a foreign legislative assembly, the United States Supreme Court has said, “the nature of the
investigation, the purposes for which the committee was appointed, and the fact that the
appellant appeared before it without objection would warrant a presumption of regularity in a
summary proceeding like this.” Kelly v. Griffin, 241 U.S. 6, 14 (1916). The same Court has also
been willing to recognize foreign documents remote in both geography and time upon such a
presumption. See McGuire v. Blount, 199 U.S. 142, 146 (1905) (saying of 85-year-old Spanish
documents that the authority upon which they were created “is presumed to be legitimate and
regularly exercised”).
Courts of our own jurisdiction affirm the general presumption. “We also apply a
presumption that public officials have acted correctly.” Hladys v. Commonwealth, 235 Va. 145,
148 (1988); see also McNally v. Va. Dep’t of Motor Vehicles, 80 Va. App. 483, 525-26 (2024);
KSS One, LLC v. Henrico Cnty., 76 Va. App. 770, 784 (2023). “That presumption may be
-9- overcome by evidence of bias or improper conduct.” Hladys, 235 Va. at 148. “Without a
showing to the contrary, state administrators ‘are assumed to be men of conscience and
intellectual discipline, capable of judging a particular controversy fairly on the basis of its own
circumstances.’” Id. (quoting Withrow v. Larkin, 421 U.S. 35, 55 (1975)).
We agree with the foregoing authority. The Commonwealth, in partnership with the U.S.
Department of Justice and Department of State, submitted a request for extradition based on its
citation of the Code and its description of the crime. Guatemalan authorities made the decision to
extradite Luna Contreras with that knowledge. The transfer documents submitted by Guatemalan
legal counsel to Guatemalan officials and judges cited Code § 18.2-33. The United States petitioned
for extradition by submitting a warrant with corresponding affidavit, signed by relevant state and
national authorities. All of these procedures are analogous to Virginia’s own statutory standards for
extradition. They also form a sufficient basis for our deference toward the processes by which
Guatemala extradited Luna Contreras. We should not challenge the decision of a foreign authority,
especially when courts in our own country have historically given deference to such authorities. As
such, we are bound to give deference to the asylum country, and we need not address the propriety
of the extradition based on the language of the treaty.
B. Proving the Predicate Felony Without a Corresponding Charge (Assignments of Error 2 & 3)
Luna Contreras argues that because felony murder requires proof of a predicate crime, his
extradition was based on a “hybrid charge” that included a non-extraditable offense. As the
Commonwealth concedes, “we have to prove that there was another felony committed, but we
don’t have to have a charge for that.” The argument continues, “[t]he underlying felony that
must be proven . . ., none of which are extraditable offenses on their own, requires the
prosecution to prove as a material element an offense that the Treaty does not authorize.”
- 10 - We fail to see any problem, or even a clear argument by Luna Contreras. If, as some of
our case law suggests, second-degree felony murder pursuant to Code § 18.2-33 involves the
implicit “imputation” of malice, then conviction of that crime involves malice and it conforms to
the federal definition of murder. See Flanders v. Commonwealth, 298 Va. 345, 357 (2020); 18
U.S.C. § 1111. Given this, Luna Contreras is either challenging the extradition because it is for a
“hybrid charge”—meaning the charge inherently involves conviction for two crimes—or he is
challenging the felony murder conviction because he believes it must be based on a predicate,
separate criminal conviction. If the latter, the issue was not preserved at the trial court, and in
fact was waived by consent to the plea agreement where Luna Contreras pleaded guilty to the
crime. “[Defendant’s] argument to the contrary seems oblivious to the fact that he entered into a
plea agreement in which he stipulated to [his sentence] . . . .” Jones v. Commonwealth, 293 Va.
29, 44 (2017). “Virginia has long held that a criminal defendant can waive ‘his appeal of right’
if the circumstances demonstrate ‘his decision to waive his appeal was made knowingly,
voluntarily, and intelligently.’” Id. (quoting Davidson v. Commonwealth, 244 Va. 129, 131
(1992)). Here, the trial court ensured that Luna Contreras understood the decision he was
making when he signed the conditional plea agreement and the only appealable issues related to
the extradition, not the conviction.
If the former, the argument is unclear. Virginia’s felony murder statute is not a “hybrid
charge.” It has elements like any other crime, though it happens to be that one of the elements
could also form the basis of a different criminal conviction. But the Commonwealth did not
pursue conviction on the predicate crimes. Further, Luna Contreras does not point to anything in
the Treaty limiting the elements in number or kind that are necessary to prove the extraditable
offense. Thus, there is no argument with enough support to justify further discussion of this
issue.
- 11 - C. The Doctrine of Specialty (Assignments of Error 4-6)
Luna Contreras claims that the language in the warrant upon which he was extradited is
different enough from the statutory language of the crime for which he was convicted that the trial
court violated the doctrine of specialty. The doctrine of specialty, “prohibit[s] the prosecution of [a]
defendant . . . for a crime other than the crime for which he had been extradited.” United States v.
Alvarez-Machain, 504 U.S. 655, 659 (1992). We reject the argument made by Luna Contreras.
Before addressing the issue in substance, we should clarify the facts on record. Luna
Contreras has repeatedly argued in the trial court and on brief that the warrant upon which he was
extradited states “accidentally kill and murder” as the relevant offense. Peppered throughout these
arguments is the starkly different wording of the warrant cited by the trial court, the
Commonwealth, and counsel for Luna Contreras himself. The language of the warrant is much
closer to the statute than we are led to believe. Compare:
Warrant: “[A]ccidentally kill and murder Jonathan Rios Perez in the second degree while in
the commission of a felony.”
Indictment: “[U]nlawfully, unintentionally, accidentally, and feloniously kill Jonathan Rios
Perez while committing a felonious act . . . in violation of § 18.2-33 . . . .”
Statute: “The killing of one accidentally . . . while in the prosecution of some felonious act
. . . is murder in the second degree . . . .” Code § 18.2-33.
From the one sentence descriptions in both the warrant and the statute, we can see that the
prepositional phrase “in the second degree” modifies the word “murder.”
Luna Contreras’ argument rests on a few ambiguities in the language of the warrant that
would admit of a departure of interpretation from the statute.3 First is whether “in the second
3 We address only two here, but will cover a third below produced by the difference between “commission” and “prosecution.” See infra at 15-16. - 12 - degree” modifies only the word “murder” or both the words “kill” and “murder.” Second is
whether accidentally killing while in the commission of a felony equates to second degree murder
or whether “accidentally killing” and “murder in the second degree” occurred simultaneously during
the commission of a felony. Yet, possible interpretations do not entail plausible interpretations.
Here, considering that the warrant cites Code § 18.2-33 as the basis for the explanation of the
offense, it would be implausible to take the latter interpretations of the warrant on either ambiguity.
Clarity is not diminished by the magistrate’s paraphrase of the statute. Its meaning entails that Luna
Contreras killed in the commission of a felony and, therefore, murdered in the second degree.4
According to the argument by Luna Contreras, “This warrant does not state an offense in
Virginia. You can accidentally kill a human being; that is not a crime.” “[T]he change between the
arrest warrant used to extradite Luna Contreras to the USA from Guatemala which does not state an
offense to the indictment which states an offense also violates the doctrine of specialty and thus
violates the Treaty.” (Emphases added). This argument complains of a switch between a
non-offense in the warrant to an offense in the indictment. Yet, Luna Contreras can only make this
claim of non-offense if he endorses the misrepresentation of the record addressed above. To
“accidentally kill a human being” or “accidentally kill and murder” are very different from
“accidentally killing a human being while in the commission of a felony.” The first two renderings
are not crimes, while the third fits Code § 18.2-33. But the first two renderings are inaccurate.
Since the warrant does state an offense, then there is no change from non-offense to offense in the
warrant and indictment, and the specialty doctrine is not violated in that respect.
4 In light of these considerations, the argument by Luna Contreras reduces to a complaint about the difference in language between “commission” (in the warrant and indictment) and “prosecution” (in the statute) of the felonious act, which will be addressed further below. See infra Section D. - 13 - In a second attempt at the specialty argument, Luna Contreras claims that even if the warrant
does state an offense upon which he can be extradited, the change in language from the warrant to
the indictment to the statute is “material” and supports a finding that the prosecution violated the
specialty doctrine. The trial court found no such violation, since the warrant, the indictment, and the
conviction all cite Code § 18.2-33.
It is permissible for the language to be slightly different in a warrant and indictment. The
Ninth Circuit, for example, has concluded that there is no violation of the specialty doctrine when
the extradited person is convicted of additional counts of the same crime. United States v.
Andonian, 29 F.3d 1432, 1437 (9th Cir. 1994). The Fifth Circuit stated further that even though
“[t]he different descriptions of the counts in the indictment and the charges in the [r]esolution [of
extradition] created confusion regarding the counts on which [the defendant] could be prosecuted,”
precedent cases “suggest that the doctrine of specialty is concerned primarily with prosecution for
different substantive offenses than those for which consent has been given . . . .” United States v.
LeBaron, 156 F.3d 621, 626-27 (5th Cir. 1998). Finally, the Eleventh Circuit has explained that
“[r]ather than mandating exact uniformity between the charges set forth in the extradition request
and the actual indictment, ‘[w]hat the doctrine of specialty requires is that the prosecution be based
on the same facts as those set forth in the request for extradition.’” Marquez v. United States, 684
Fed. Appx. 843, 856 (11th Cir. 2017) (alterations in original) (quoting Gallo-Chamorro v. United
States, 233 F.3d 1298, 1305 (11th Cir. 2000)).
Luna Contreras has not cited any misrepresentation in the facts given to Guatemala nor any
theory as to why the changes in language between the warrant, indictment, and statute are
“material.” Taking cues from our own law, Virginia allows changes to indictments so long as they
do not “change the nature or character of the offense charged.” Code § 19.2-231. This Court has
held, for example, that a difference in description of the facts that does not affect the basis of the
- 14 - conviction is permissible, even when it may change the sentence. See Dunaway v. Commonwealth,
52 Va. App. 281, 297 (2008). In contrast, if the indictment fails to state a crime for which the
defendant will be convicted, it is a material change. See Grier v. Commonwealth, 35 Va. App. 560,
568 (2001). We cannot find any justification to assert that the language change was “material.”
D. Non-Offense in the Warrant or Indictment (Assignments of Error 7-9)
Luna Contreras argues that the warrant and indictment state a non-offense in Virginia
law. This is in part because of the misrepresentation in language we have already addressed
above. See supra Section C. However, he also bases this argument on the fact that while the
statute uses the word “prosecution” of a felonious act, both the warrant and indictment use the
word “commission.” This argument also lacks merit.
Were we to grant every claim Luna Contreras makes about the legal difference between
“commission” and “prosecution,” it would not support his argument. He observes that “even
Flanders imagines situations broader than the ‘commission of a felony’ to be part of the res
gestae of the underlying felony to determine if the accidental homicide is in the ‘prosecution’ of
the felony.” See Flanders, 298 Va. at 345. This does not help his case. If “commission” of a
felony is narrower than “prosecution” of a felony, then showing that Luna Contreras killed
someone in the commission of a felony entails that he killed someone in the prosecution of a
felony.
More importantly, though, the discussion in Flanders pertains to the “two-step inquiry”
of (a) what felonious acts can serve as predicates to Code § 18.2-33 felony murder, and (b)
whether the death falls within the res gestae of the felonious act. Id. at 352-53. As to the first
step, Luna Contreras has not preserved any objection, as discussed above. See supra at 12. As
to the second step, the injury to the deceased passenger occurred during and because of the
- 15 - felonious acts of Luna Contreras. The resultant death occurred with the proper “time, place, and
causal connection.” Flanders, 298 Va. at 360. The res gestae is not in dispute.
Luna Contreras attempts to use the res gestae argument to show that the warrant and
indictment cite a non-offense. But the failure of this argument should be apparent by now.
Though Flanders does trace the history of murder and homicide laws in Virginia, it does not pit
the words “commission” and “prosecution” against each other or even note a difference between
them. See id. at 352-53. In fact, the discussion about the statutory language tends to work
against Luna Contreras’ theory. “[T]he res gestae of the underlying crime begins where an
indictable attempt to commit the felony is reached and ends where the chain of events between
the attempted crime or completed felony is broken.” Id. at 361 (quoting Berkeley v.
Commonwealth, 19 Va. App. 279, 286 (1994)). This passage shows that the word “commit” can
be used interchangeably with the word “prosecute.” It also shows that the killing was well
within the res gestae of Luna Contreras’ felonious acts and that the warrant and indictment
adequately describe the law under which he was extradited and convicted.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
- 16 -