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In re Extradition of Mirela

United States District Court, D. Connecticut

March 1, 2018

IN THE MATTER OF THE EXTRADITION OF MANEA ORTANSA MIRELA[1]

          RULING ON REQUEST FOR EXTRADITION

          Joan Glazer Margolis, United States Magistrate Judge

         On August 14, 2015, this Magistrate Judge signed a complaint and arrest warrant for the arrest of Manea Ortansa Mirela [“Manea”], [2] in accordance with the Extradition Treaty between the United States and Romania, and 18 U.S.C. § 3184. (Dkt. #1).[3] The complaint charges Manea with convictions, in absentia, of the following offenses:

(a) deceit in a continued form, offense provided by article 215(2) and (3) of the Criminal Code of Romania with the application of article 41(2), article 42 in conjunction with article 34 and article 13 of the Criminal Code of Romania;
(b) the offense provided by article 40 of Law 82/1991 on accountancy, in relation to article 289 of the Criminal Code of Romania, with the application of article 41(2) of the Criminal Code of Romania;
(c) forgery of documents under private signature provided by article 290 with application of article 41(2) of the Criminal Code of Romania;
(d) forgery in statements, provided [by] article 292 of the Criminal Code of Romania;
(e) using bad faith of the loans of the company to the personal interest, provided by article 194(5) of the Law 31/1990 on the commercial companies with the application article 41(2), article 42, article 34, and article 13 of the Criminal Code of Romania;
(f) forgery, provided by article 291 of the Criminal Code of Romania, with the application of article 41(2) of the Criminal Code of Romania.

(Id. at 1-2). Manea was convicted of submitting fraudulent documents to several Romanian financial institutions, including Bancorex SA, the International Bank of Religions, and Bankcoop SA, in order to obtain loans that Manea did not repay and that she used for her personal interest. (See Dkt. #1, Att. B).[4] Two other co-conspirators were charged: Ciocan Marian, Manea's associate and director of S.C. Bravo MM‘95 SRL, and Zega Macedon Anton, the deputy director of S.C. Bancorex SA - Lipscani branch. (Id.). On February 1, 2001, Manea was sentenced to nine years' imprisonment, and on March 5, 2001, a warrant of imprisonment was issued from the Bucharest Sector 3 Court of Law, but was not executed “as the defendant eluded the execution of the penalty [by] being located [i]n the territory of the United States of America.” (Dkt. #1, at 2).

         Manea was arrested in this district on August 14, 2015, and presented before this United States Magistrate Judge (Dkt. #4); the same day, the Federal Public Defender's Office was appointed to represent Manea. (Dkt. #6). Manea was released on bond with her employer along with her husband, Paul Neagu, to serve as third-party custodians. (Dkts. ## 7-8). On August 20, 2015, after a hearing before this Magistrate Judge, the Order Setting Conditions of Release was amended to include three additional co-signors for her bond and a third-party custodian from her workplace. (Dkts. ##12-13, 17). On October 26, 2015, this Magistrate Judge granted the parties' Joint Motion to Modify Conditions of Release/Bond such that Neagu was released as a third-party custodian as the parties were separated due to “marital difficulties[, ]” and Neagu's employer was released as one of the co-signors of the bond in light of the dissolution of the relationship between Manea and Neagu. (Dkt. #21, at 1-2; Dkt. #22).

         On November 20, 2015, the Connecticut Superior Court issued a restraining order in favor of Manea against Neagu following a hearing concerning domestic abuse. (Dkt. #23, at 2). On February 8, 2016, the parties jointly moved to have Neagu removed as a co-signor to Manea's bond, and to add to additional co-signors to the bond. (Id.). The parties' motion was granted the same day. (Dkt. #24).[5]

         On August 2, 2016, the Government filed the pending Motion for Extradition. (Dkt. #32).[6] This Magistrate Judge held a telephone conference nine days later, on August 11, 2016, during which the extradition hearing was scheduled for December 6, 2016 (Dkts. ##33, 36-37; see also Dkts. ##34-35), and then rescheduled to January 18, 2017 (Dkt. #44; see also Dkts. ##42-43), and at the request of counsel (Dkts. ##47-48), rescheduled again to March 22, 2017. (Dkt. #49).

         On October 24, 2016, defendant filed her brief in opposition to the Government's Motion for Extradition, with multiple exhibits attached. (Dkt. #38;[7] see also Dkts. ##39-41). On January 18, 2017, the Government filed its reply brief, with multiple exhibits in support. (Dkt. #52;[8] see Dkts. ##42-43, 47-48). On February 17, 2017, defendant filed a sur-reply brief (Dkt. #60;[9] see Dkts. ##56-57), and on February 24, 2017, the Government filed a copy of both the Romanian and English versions of the Romanian indictment. (Dkt. #61).[10]A hearing was held pursuant to 18 U.S.C. § 3184 on March 22, 2017. (Dkt. #62).

         For the reasons set forth below, the Government's Motion for Extradition (Dkt. #32) is granted.

         I. DISCUSSION

         A. PROCEDURAL BACKGROUND

         The lengthy procedural history of this case, which began twenty-two years ago, is detailed in an attachment to Romania's Request for Extradition (Dkt. #1, Request for Extradition, Att. A), and supplemented by the parties' briefs. (See Dkts. ##32, 38, 52, 60).

         Manea was born in 1963 in Pantelimon, Ilfov Country, Romania. (Dkt. #38, at 19).[11]After Manea completed high school, she attended veterinary school, married and divorced, and then gave birth to her only son in 1989, the product of a subsequent relationship which ended shortly after her son was born. (Id. at 22-23).

         An investigation began in 1996 regarding claims that from 1994 to 1996, Manea defrauded various banks in conjunction with receiving loans for her companies, “Bravo MM ‘95 Impex” and “Ando Exim” LLC. (See Dkt. #32, at 4; Dkt. #1, Request for Extradition, Att. A at 7). Specifically, according to Romanian documents, between October 1994 and August 1996, Manea used forged documents to mislead Bancorex SA, International Bank of Religions, and Bankcoop SA, to secure seven loans for her companies. (Dkt. #1, Request for Extradition, Att. A at 7). On September 3, 1996, Manea provided her first written statement to investigative authorities arising out of a series of loans taken by Manea from October 1994 to August 1996. (Id. at 1-2). On February 6, 1997, Manea provided a “new written statement with regard to the offen[s]es” (id. at 1)(emphasis omitted), and one month later, on March 4, 1997, after providing two pictures, a copy of her birth certificate, proof of residency in Romania, and her police certificate, referred to as a cazier judiciar[12] from the police department, Manea received a visa to travel to the United States. (See Dkt. #38, Exh. A ¶¶ 4, 10 & Exh. B).[13]

         On March 17, 1997, Manea left Bucharest and traveled to Hungary, and on April 8, 1997, plaintiff flew from Hungary to John F. Kennedy International Airport in New York City. (Dkt. #38, Exh. A ¶¶ 16, 18, 20). She was granted a temporary stay in the United States from April 8, 1997 to October 7, 1997 (see id. ¶ 21 & Exh. D), and within a few days of her arrival in Philadelphia, she applied for and received a driver's license and a temporary social security number. (Dkt. #38, Exh. A ¶ 22 & Exh. E).

         Around the same time, on April 23, 1997, “investigative authorities [in Romania] issued a report stating the search activities undertaken against the defendant in view of her identification hearing and arrest.” (Dkt. #1, Request for Extradition, Att. A at 6)(emphasis omitted). The Prosecutor's Office of the Supreme Court of Justice in Romania “issued in [Manea's] absence[, ] the preventative arrest warrant no. 37.120.05.1997 and the national and international search procedure was triggered against her.” (Id. at 6-7)(emphasis omitted).[14] Similarly, the “initiation of the criminal action . . . began against the accused Manea . . ., by the Ordinance from May 12, 1997.” (Id. at 7)(emphasis omitted). A second “report of initiation of criminal prosecution” was issued on June 5, 1997. (Id. at 6)(emphasis omitted). An indictment issued against Manea on December 23, 1997. (Dkt. #61).[15] Two other co-conspirators, Ciocan Marian and Zega Macedon Anton, were also charged. (Dkt. #32, at 5).

         On March 11, 1998, the investigative authorities in Romania issued a “report of initiation of criminal prosecution[.]” (Dkt. #1, Request for Extradition, Att. A, at 6)(emphasis omitted). On March 19, 1998, Manea married Tony Porto and moved into his home in New York. (Dkt. #38, Exh. A ¶ 24 & Exh. G).[16] An extension of her stay in the United States was approved on April 8, 1998. (Dkt. #38, Exh. F).

         Manea, Ciocan Marian, and Zega Macedon Anton had a joint trial; Ciocan Marian and Zega Macedon Anton were present with counsel, while Manea was neither present nor had counsel to represent her interests. (Dkt. #32, at 5). On February 1, 2001, the Bucharest Court issued a decision, which convicted Manea and sentenced her to nine years' imprisonment.[17] (Dkt. #1, Att. B at 23-53 & Att. C at 60-61).

         After marrying Porto, Manea obtained a green card, further extending her stay in the United States to May 10, 2001. (Dkt. #38, Exh. A ¶ 24 & Exh. H). On March 5, 2004, Manea became a naturalized citizen of the United States. (Id. & Exh. J).[18]

         Pursuant to a request of the Ministry of Administration and Interior in Bucharest, Romania, the Bucharest Police General Directorate - Criminal Investigations Division issued two warrants for Manea: a European arrest warrant, dated May 8, 2009, and an international search warrant, dated May 8, 2009, for the purpose of imposing “the custodial sentence execution based on the custodial sentence execution warrant No. 295/March 5th, 2001.” (Dkt. #52, Exh. 1 at 10-11).

         Manea and Porto divorced on March 20, 2011; however, despite the dissolution of their marriage, they remained close friends. (Dkt. #38, at 29). In 2012, Manea married Paul Neagu. (Id.).

         On February 29, 2012, the Romanian Embassy to the United States communicated Manea's address in Patterson, NY, and noted her name change to Porto Ortansa Mirela. (Dkt. #52, Exh. 1, at 11, 14-15). A month later, on March 1, 2012, Manea was identified in the United States, and the next day, a decision was issued by the Bucharest 3rd Urban District Court to forward a request to the Ministry of Justice for Manea's extradition to Romania. (Id. at 11). The Request for Extradition from the Ministry of Justice to the United States Department of Justice, Office of International Affairs, is dated April 23, 2012. (Dkt. #1, Exh. 1). The Department of Justice transmitted the official Romanian extradition request to the District of Connecticut in March 2015 (Dkt. #32, at 6), and, as discussed above, Manea was arrested on August 14, 2015 and presented before this U.S. Magistrate Judge (Dkt. #4); she was released on bond and has remained on bond to the present. On June 21, 2016, Neagu and Manea divorced.[19] (Dkt. #38, Exh. M).

         B. PRINCIPALS OF EXTRADITION LAW

         Extradition of fugitives from foreign countries is governed by 18 U.S.C. § 3184 which provides in relevant part:

Whenever there is a treaty or convention for extradition between the United States and any foreign government, . . . any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, . . . may, upon complaint made under oath, charging any person found within his [or her] jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, . . . issue his [or her] warrant for the apprehension of the person so charged, that he [or she] may be brought before such justice, judge, or magistrate judge . . . of the United States District Court . . . .

18 U.S.C. § 3184.[20] The court must hold a hearing to determine whether “the evidence [is] sufficient to sustain the charge under the provisions of the proper treaty or convention . . . .” Id. The court's inquiry is “confined to the following: whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and whether the evidence marshaled in support of the complaint for extradition is sufficient under the applicable standard of proof.” Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000), citing Lo Duca v. United States, 93 F.3d 1100, 1103-04 (2d Cir.)(additional citation omitted), cert. denied, 519 U.S. 1007 (1996). If the Court finds the evidence sufficient, the Court “shall certify the same, together with a copy of all the testimony taken before him [or her], to the Secretary of State[.]” 18 U.S.C. § 3184. “At that point, the Secretary of State has final authority to extradite the fugitive, but is not required to do so.” Lo Duca, 93 F.3d at 1103; Cheung, 213 F.3d at 88 (after the Court completes its inquiry, the Court “shall certify” the extraditability of the fugitive to the Secretary of State, who “has sole discretion to weigh the political or other consequences of extradition and to determine finally whether to extradite the fugitive.”). However, the “Executive Branch retains plenary discretion to refuse extradition.” Lo Duca, 93 F.3d at 1103-04.

         “The function of the committing magistrate is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.” Collins v. Loisel, 259 U.S. 309, 316 (1922)(multiple citations omitted). The extradition hearing is “essentially a preliminary examination to determine whether a case is made out which will justify the holding of the accused and [her] surrender to the demanding nation.” Ward v. Rutherford, 921 F.2d 286, 287 (D.C. Cir. 1990)(citation & internal quotations omitted), cert. dismissed sub nom. Ward v. Attride, 501 U.S. 1225 (1991). Accordingly, “extradition proceedings are not to be converted into a dress rehearsal trial[, ]” Jhirad v. Ferrandina, 536 F.2d 478, 484 (2d Cir.)(citation omitted), cert. denied, 429 U.S. 833, reh. denied, 429 U.S. 980 (1976), and it “is well to remember that [the fugitive's] ultimate culpability will not be determined in the United States.” Id.; see also id. at 482 (“Orders of extradition are sui generis. They embody no judgment on the guilt or innocence of the accused but serve only to insure that [the fugitive's] culpability will be determined in another and, in this instance, a foreign forum.”). “Thus, evidence of alibi or of facts contradicting the demanding country's proof or of a defense such as insanity may properly be excluded from the [Magistrate Judge's] hearing.” Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir.), citing Charlton v. Kelly, 229 U.S. 447, 456 (1913), cert. dismissed, 414 U.S. 884 (1973). Additionally, the defendant in an extradition proceeding “may not proffer evidence to contradict the showing of the requesting state. . . . Defendant's simple denials of responsibility as a matter of fact are therefore inadmissible in this proceeding.” In the Matter of the Extradition of Harold Glantz, No. 94 Crim. Misc. 1 P. 25, 1995 WL 495644, at *13 (S.D.N.Y. Aug. 21, 1995); see also Collins, 259 U.S. at 316 (evidence properly excluded related strictly to the defense, as the “function of the committing magistrate is to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction[]”)(multiple citations omited). As the Second Circuit has “stressed . . ., ‘[w]hat is at issue in the proceeding . . . is not punishability but prosecutability.'” Skaftouros v. United States, 667 F.3d 144, 155 (2d Cir. 2011), quoting In re McMullen, 989 F.2d 603, 611 (2d Cir. 1993)(emphasis added).

         “Judicial officers considering extradition requests . . . should not engage in an analysis of the demanding country's law and procedure, except to the limited extent necessary to ensure that the requirements of the federal extradition statute and the applicable extradition treaty have been satisfied.” Id. at 156. This directive is consistent with the principles of international comity, see Jhirad, 536 F.2d at 484-85 (“It is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation. Such an assumption would directly conflict with the principle of comity upon which extradition is based.”)(citation omitted), and judicial modesty, as “U.S. courts are strongly discouraged from reviewing whether the demanding country has complied with its own law and, indeed, it is error to do so except to the limited extent necessary to ensure compliance with the applicable extradition treaty.” Skaftouros, 667 F.3d at 156 (citations omitted).

         C. U.S.-ROMANIAN EXTRADITION TREATY & AUTHENTICATION OF DOCUMENTS

         The extradition statute, 18 U.S.C. § 3184, provides for extradition when “there is a treaty . . . for extradition between the United States and any foreign government[]” requesting extradition. In this case, Susan R. Benda, an Attorney-Advisor in the Office of the Legal Adviser for the Department of State, attests to the existence of the Extradition Treaty in full force and effect between the United States and Romania. (Dkt. #1, Benda Aff't ¶ 2). The Extradition Treaty between the United States and Romania was signed on September 10, 2007. (Id. ¶ 3). The parties in this case do not contest the authority of this court to conduct this extradition proceeding, [21] nor do they contest that this court has personal jurisdiction over Manea, who was found in Connecticut. Additionally, the parties do not contest that there is a treaty in full force between Romania and the United States. Thus, at issue is whether the crimes with which Manea was charged in Romania are covered by the Treaty and whether probable cause exists.

         The evidence submitted by Romania along with its Request for Extradition (see Dkt. #1) has been authenticated in accordance with 18 U.S.C. § 3190, which requires that “the principal diplomatic or consular officer of the United States resident in such foreign country” certify as to the documents' authenticity. “Once that authentication has occurred, ‘[t]he usual rules of evidence do not apply' and the only requirement for admission of the evidence is that it be authenticated.'” In re Zhenley Ye Gon, 768 F.Supp.2d 69, 90 (D.D.C. 2011), quoting Manta v. Chertoff, 518 F.3d 1134, 1146 (9th Cir. 2008). Pursuant to the terms of the Extradition Treaty, the Embassy of Romania submitted Diplomatic Note 1289, dated May 21, 2012, formally requesting the extradition of Manea, as well as Diplomatic Note 3355, dated November 6, 2014, providing additional information to supplement its request. (See Dkt. #1, Exh. 1 at 5-6; id., Benda Aff't ¶ 2). Additionally, Article 10 of the Extradition Treaty provides that the “[d]ocuments that bear the certificate of the Ministry or Department of Justice, or the Ministry or Department responsible for foreign affairs[] of the Requesting State shall be admissible in extradition proceedings in the Requested State without further certification, authentication, or other legalization.” (Dkt. #1, Extradition Treaty, Art. 10). Article 11 provides that “[a]ll documents submitted by the Requesting State shall be translated into the language of the Requested State, unless otherwise agreed.” (Id., Art. 11).[22]

         In this case, the official Request for Extradition from the Embassy of Romania came in diplomatic note numbers 1289 and 3355, dated May 21, 2012 and November 6, 2014, respectively. (Dkt. #1, Exh. 1 at 5-6; Benda Aff't ¶ 2). In her affidavit, Benda avers:

[i]n accordance with Article 10 of the Extradition Treaty, documents that bear the certificate or seal of the Ministry or Department of Justice, or the Ministry or Department responsible for foreign affairs, of the Requesting State are admissible . . . . Therefore, such documents satisfy the authentication requirements without the need for certification by the U.S. Embassy in Bucharest.

(Dkt. #1, Benda Aff't ¶ 6). In this case, the Romanian language documents transmitted along with the diplomatic note bear the seal of the Romanian Ministry of Justice (see Dkt. #1, Exhs.; Dkt. #61-1), as do the documents in Romania's supplemental submissions (see Dkt. #52, Exhs.), and as the Government correctly notes, there is no requirement that the translated documents also bear such certification.[23]

         D. RELEVANT PROVISIONS OF THE EXTRADITION TREATY

         1. ARTICLE 1: OBLIGATION TO EXTRADITE

         Article 1 of the Treaty provides for the return of fugitives who have been “charged with, found guilty of, or convicted of an extraditable offense.” (See Dkt. #1, Extradition Treaty, Art. 1[24]). Attached to the criminal complaint signed by this Magistrate Judge is the Romanian warrant of imprisonment penalty, dated March 5, 2001. (Dkt. #1, Request for Extradition, Att. C at 60). The warrant orders “the arrest of” Manea for the “transfer to a penitentiary for the execution of” the penalty of “[nine] years imprisonment[.]” (Id.).

         Plaintiff contends that Romania's failure to provide a copy of the 1997[25] arrest warrant renders her not properly “charged” under the Treaty (Dkt. #38, at 50-51); however, in the November 22, 2016 supplemental submission by Romanian authorities, it is explained that the May 12, 1997 arrest warrant was “validly issued in absentia of the defendant[]” and that “after the penal judgment” became final, the “judicial authorities issued the custodial sentence execution warrant No. 295/March 5th, 2001" on Manea. (Dkt. #52, Exh. 1 at 11). As stated above, the extradition request included the final 2001 warrant. Accordingly, even in the absence of the underlying 1997 arrest warrant, this Court properly relies on the representation of Romanian authorities that such warrant was valid, as required by the Treaty. See Bašiæ v. Steck, 819 F.3d 897, 901 (6th Cir.)(a 2011 document from the “Ministry of Justice of BiH Sarajevo” explains that the directive is “‘the Arrest Warrant' in this matter”; the court “will not second guess this determination[]”)(citation omitted), cert. denied, 137 S.Ct. 196 (2016).

         2. ARTICLE 2: EXTRADITABLE OFFENSES

         An “extraditable offense[, ]” as defined in Article 2, is an offense that is “punishable under the laws of both Parties by” imprisonment of more than one year “or by a more severe penalty.” (Dkt. #1, Extradition Treaty, Art. 2, ¶ 1). Article 2 further provides that an “extraditable offense” exists whether or not the two countries define the offenses the same, and whether or not the offense is one for which United States federal law would require a connection to interstate or foreign commerce. (Id., Art. 2, ¶¶ 3(a)-(b)). Thus, the offenses for which Manea was convicted need not hold the same name, but rather “[i]t is enough if the particular act charged is criminal in both jurisdictions.” Collins, 259 U.S. at 312. “In situations where the laws of both the requesting and the requested party appear to be directed to the same basic evil, the contrary rule is applicable.” Shapiro, 478 F.2d at 908 (footnote omitted).

         Romania seeks extradition of Manea after her conviction at trial in absentia in Romania for the following offenses under Romanian law: (1) deceit in a continued form; (2) knowingly making inaccurate accounting records; (3) forgery of documents under private signature; (4) using loans of a company for one's personal interest, in bad faith; and (5) use of forgery. (See Dkt. #1 & Exh. 1, Att. A). Specifically, under Article 215 of the Romanian Criminal Code, “[t]he act of deceiving a person, by presenting a false fact as being true or a true fact as being false, in order to obtain unjust material benefit for oneself or another, and if damage was caused, ” is a crime punishable by “imprisonment from [three] months to [two] years or by fine.” (Dkt. #1, Exh. 1, Att. A at 9). “Deceit committed by using untruthful names or capacities, or with fraudulent means” is punishable by imprisonment of one to three years. (Id.). A person violates Law 82/1991, Article 40 by knowingly “making with knowledge inaccurate records as well as the action of omitting with knowledge the recording of the records into the accounting. . . .” (Id. at 10). Under Article 290, “forgery of a document under private signature . . . if the perpetrator uses the forged document or gives it to another person for use, in order to produce legal consequences [is] punishable by imprisonment from [three] months to [two] years or by fine[, ]” and the use of forgery, under Article 291, is punishable by imprisonment from three months to three years if the document is an official document, or two years if the document is under private signature. (Id. at 9). A party who, “with bad faith, use[s] the assets or loans/credits of the company contrary to the interests of it or for the personal benefit, or those who favo[]r another company, in which they are interested directly or indirectly shall be punished by imprisonment from [three] months to [two] years or by fine[, ]” pursuant to Law 31/1990, Article 194(5). (Id. at 10).

         Manea, relying on the report of her expert, [26] contends that Romania “completely revised its criminal code” but has not provided information about these new laws, so that Romania has not provided any information showing that the dual criminality requirement of Article 2 is met. (Dkt. #38, at 51-52). The U.S. State Department has certified that the offenses for which extradition is sought are covered by Article 2 of the Extradition Treaty (Dkt. #1, Exh. 1, Benda Decl. ¶ 5), and the State Department's determination is entitled to deference. See Factor v. Laubenheimer, 290 U.S. 276, 294-301 (1933). As the Government appropriately notes, the offenses, had they occurred in the United States, would be subject to prosecution under state laws: forgery, Conn. Gent. Stat. §§ 53a-138 (first degree), 53a-139 (second degree), 53a-140 (third degree); larceny (defined as part of embezzlement), Conn. Gen. Stat. §§ 53a-119 to -125b; bank fraud, 18 U.S.C. § 1344; and potentially wire fraud, 18, U.S.C. § 1343. See Hu Yau-Leung v. Soscia, 649 F.2d 914, 918-19 (2d Cir.), cert. denied, 454 U.S. 971 (1981)(court is permitted to look to both federal and state law to establish dual criminality).[27] Accordingly, the requirement for dual criminality has been satisfied.

         3. ARTICLE 6: STATUTE OF LIMITATIONS

         Manea next argues that Article 6 of the Extradition Treaty precludes Manea's extradition because the prosecution is time-barred. (Dkt. #38, at 44-47; see Dkt. #1, Extradition Treaty, Art. 6). The Government counters that Article 6[28] is “plainly discretionary[, ]” and such discretion “is properly left to the Department of State.” (Dkt. #52, at 11-12)(citation omitted).[29]

         Article 6 of the Extradition Treaty provides that: “Extradition may be denied if prosecution of the offense of execution of the penalty is barred by lapse of time under the laws of the Requesting State.” (Dkt. #1, Extradition Treaty, Art. 6). Article 6 continues: “Acts that would interrupt or suspend the prescriptive period in the Requesting State are to be given effect by the Requested State.” (Id.). The lapse of time provision in this Treaty, as in “[m]any bilateral treaties, . . . preclude[s] extradition if prosecution for the offense charged, or enforcement of the penalty, has become barred by lapse of time under the applicable law.” See 1 Restatement (Third) of the Foreign Relations Law of the United States § 476 (1987), Comment e.

         This Court retains jurisdiction to examine Romanian law for the limited purpose of establishing whether its statute of limitations has expired, see Skaftouros, 667 F.3d at 161 (“Because the Treaty itself requires an examination of whether the statute of limitations of either the demanding or asylum country has expired . . ., it was proper for the District Court to examine Greek law for the limited purpose of determining whether its statute of limitations had expired.”), and the burden is on Manea to prove that the statute of limitations has run. Id.

         The Romanian Criminal Code includes a special prescription period that Manea argues is applicable to this case. (See Dkt. #1, Exh. 1, Att. A at 12, Romanian Criminal Code Arts. 121-124; Dkt. #38, at 45).[30] There are three types of prescriptions applicable: the “prescription for criminal liability, ” the “special prescription, ” and the “prescription of penalty service.” (Dkt. #1, Exh. 1, Att. A at 12-13, Arts. 122, 124, 126). The parties agree that the latest offense date is August 31, 1996. The prescription for criminal liability for Manea is, at most, eight years, based on Article 122(c) of the Romanian Criminal Code which provides that “when the law provides imprisonment for more than [five] years but not exceeding [ten] years, for the offen[s]e committed[, ]” the prescription for criminal liability is eight years. (Id. at 12; see Dkt. #38, at 45; Dkt. #52, at 13). Thus, if, as the parties agree, the latest offense date is August 31, 1996, the prescription period would be complete on August 31, 2004. The criminal action against Manea was initiated on May 12, 1997 (see Dkt. #1, Exh. 1, Att. A at 16), well within the prescription period. Additionally, Romanian authorities have stated that “in this procedural stage (of final penal judgment enforcement) the prescription of penal responsibility can no longer be brought up[.]” (Dkt. #52, Exh. 1 at 11).

         The special prescription period for criminal liability, as provided for in the Romanian Criminal Code, Article 124, “removes criminal liability regardless of how many interruptions may occur, if the term in [Article] 122 is exceeded by one more half.” (Dkt. #1, Exh. 1, Att. A, at 12). Thus, because the term in Article 122, as referenced above, is eight years, the special prescription period which would remove criminal liability would be eight years plus four more years, or twelve years. Twelve years from the last offense date is August 31, 2008. Manea's expert, Attorney Tiberui Dianu, contends that this prescription period applies to the date that the extradition request was filed, and the extradition request was not filed until 2012. (Dkt. #38, Exh. Q ¶ 10 (“prescription of criminal liability has been accomplished on August 31st, 2004, while the extradition request was issued much later, on April 23rd, 2012.”)).

         Attorney Dianu explains that the “special prescription (Article 124) has been to establish a clear and final prescription term against a continuity of procedural acts that would otherwise have created a de facto imprescriptibility of offense, in contradiction with the general principles of prescription evoked by Articles 122, 124, and 126.” (Dkt. #38, Exh. Q ¶ 18). He then concludes that “the charges against the defendant are prescribed and the claims of the Romanian authorities to extradite the defendant are barred by the statute of limitation imposed by the Romanian legislation[.] . . .” (Id., Exh. Q ¶ 19). Attorney Dianu's conclusion, however, contradicts Romania's explanation of the law, which is that “[t]he relevant action is the filing of criminal charges, and not the filing of the extradition request.” (Dkt. #52, at 13);[31] Messina, 728 F.2d at 80 (explanatory testimony is permissible but a fugitive “may not offer proof which contradicts that of the demanding country”)(citation omitted); see also Shapiro, 478 F.2d at 905 (citations omitted)(the fugitive's “right to introduce evidence is . . . limited to testimony which explains rather than contradicts the demanding country's proof[]”).[32]

         Romania represents that for the prescription of penalty service, according to Article 126, Paragraph 1, Index B, Penal Code, the limitation period for the execution of punishment is fourteen years; the date the judgment became final was March 5, 2001 (Dkt. #52, Exh. 1 at 11); therefore, as Manea's expert agrees, the limitation period would end on March 5, 2015. (Dkt. #38, Exh. Q ¶ 9). However, Romania explains that the prescription of penalty service is tolled in this case because of the submission of the extradition package in the spring of 2012. (Dkt. #52, Exh. 1 at 11-12; see Dkt. #1, Extradition Treaty, Art. 6 (“Acts that would interrupt or suspend the prescriptive period in the Requesting State are to be given effect by the Requested State.”)). On March 1, 2012, the Romanian authorities learned that Manea was in the United States. (Dkt. #52, Exh. 1 at 11). On March 2, 2012, “a decision was issued . . . by which [Romania] acknowledged as fulfilled the legal requirements for the extradition of the sentenced person[.]” (Id.)(emphasis omitted). According to the Romanian authorities,

the limitation period for sentence execution did not expire on March 4th, 2015 as the course of sentence execution prescription was interrupted, considering that on March 2nd, 2012[, ] the decision was passed by which the judicial ., the period is generally calculated from the time of the alleged commission of the offense to the time of the warrant, arrest, indictment, or similar step in the requesting state, or the filing of the request for extradition, whichever occurs first.” See 1 Restatement (Third) of the Foreign Relations Law of the United States § 476 (1987), Comment e. Moreover, “[t]he period may be tolled if the accused has fled from the requesting state or concealed his [or her] whereabouts.” Id. authorities acknowledged as fulfilled the requirements for the extradition of the sentenced person . . . [and] transmitted to the Ministry of Justice who, on April 23rd, 2013[, ] submitted the extradition requests to the General Directorate - Consular Affairs of the Ministry of Foreign Affairs so that it should be transmitted by diplomatic channels to the U.S. authorities.

(Dkt. #52, Exh. 1 at 11-12).

         Romanian officials have detailed the tolling process as it applies to this case, and this Court cannot “question the reliability or trustworthiness of a judicial decree from a foreign nation.” In re Extradition of Jimenez, No. 14-2319-SAG, 2014 WL 7239941, at *1-2 (D. Md. Dec. 16, 2014)(rejecting claim that extradition to Costa Rica was not permitted because the statute of limitations lapsed for sentencing when the documents provided by Costa Rica explained that the statute of limitations was tolled), citing Jhirad, 536 F.2d at 484-85 (“It is not the business of our courts to assume the responsibility for supervising the integrity of the integrity of the judicial system of another nation.”); Skaftouros, 667 F.3d at 156 (“Any arguments regarding the demanding country's compliance with its own laws [ ] are properly reserved for the courts of that country.”); see also In re Extradition of Robertson, No. 11-MJ-0310 KJN, 2012 WL 5199152, at *10-11 (E.D. Cal. Oct. 19, 2012)(finding for extradition despite “arguable points raised by counsel” as the court “decline[d] to make a determination regarding the law of Canada, with respect to what forms of supervision are included in a criminal sentence under the laws of that country that is at odds with the representations of the government requesting extradition[]”), citing Skaftourous, 667 F.3d at 156.

         Moreover, in addition to concluding that the treaty provision addressing the statute of limitations does not bar extradition in this case, this Court is also mindful that the “delay in seeking extradition may be relevant to the Secretary of State's final determination as to whether a fugitive should be extradited, ” but delay is not an independent defense to judicial extradition proceedings. Murphy v. United States, 199 F.3d 599, 602 (2d Cir. 1999), citing Kamrin v. United States, 725 F.2d 1225, 1227 (9th Cir.), cert. denied, 469 U.S. 817 (1984).[33]

         Thus, although the Court agrees with Manea that “[t]he existence of a statute of limitations in the governing treaty is an important protection, particularly in a case like this where it has been [more than twenty] years since the end of the alleged offense conduct . . .”, especially where the relator was convicted in absence and without counsel, where the key co-defendant is dead, where the witnesses are dead, and where the victim banks are defunct (Dkt. #38, at 44), the latter consideration of Manea's laches argument regarding the lapse of time is not an argument for this Court, but rather, one properly for the Executive branch's consideration. See In re Ribaudo, 2004 WL 213021, at *10-11 (absent Second Circuit authority for the proposition that a delay to extradition or the doctrine of laches applies, the fourteen years that elapsed between the date the arrest warrant was issued in Italy and the date upon which the extradition request was made does not constitute a defense to extradition).

         4. SUFFICIENCY OF THE EVIDENCE

         a. ARTICLE 8: EXTRADITION PROCEDURE & REQUIRED DOCUMENTS

         Pursuant to Article 8 of the Treaty, requests for extradition “shall be submitted through the diplomatic channel” and shall be supported by “documents, statements, or other types of information that describe the identity and probable location” of the fugitive; “information describing the facts of the offense and a brief procedural history of the case”; the “relevant text of the law(s) describing the essential elements of the offense”; the “relevant text of the law(s) prescribing punishment for the offense”; and “the relevant text of the law(s) describing any time limit on the prosecution of enforcement of the penalty[.]” (Dkt. #1, Extradition Treaty, Art. 8 ¶¶ 2(a)-(e)).

         In this case, Manea contends that Romania has not provided “certain portions of the Romanian Criminal Code[, ]” namely Articles 33 and 34.[34] (Dkt. #38, at 48-49). However, the Romanian authorities provided a supplemental submission, dated November 22, 2016, transmitted to the United States Attorney's Office for the District of Connecticut on January 3, 2017 (Dkt. #52, at 3 & Exh. 1), in which the relevant text of Articles 33 and 34 were included.[35] (See Dkt. #1, Extradition Treaty, Art. 8 ¶¶ 2(b)- (c) (Romania need only provide the “relevant text” of the laws describing the elements of the offense and the punishment)). Pursuant to Articles 9 and 10 of the Treaty, supplemental information in support of extradition was provided by the Ministry of Justice of Romania to the United States Department of Justice, and such supplemental information is admissible as it bears the certificate or seal of the Ministry. (Dkt. #1, Extradition Treaty, Arts. 9-10).[36]

         Additionally, pursuant to the terms of the Treaty, a request for extradition shall also be supported by: “(a) a copy of the warrant or order of arrest or detention issued by a judge, court, or other competent authority; [and] (b) a copy of the charging document; and (c) such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is sought. ” (Dkt. #1, Extradition Treaty, Art. 8 ¶¶ 3(a)-(c)). For a request for extradition relating to a person who has been found guilty or convicted in absentia, such as the case at hand, the requirement for the production of the documents referenced in Section 3 of Article 8 is mandatory. (Id., ¶ 4(d)). Additionally, Article 8 requires that a request for a person who has been found guilty or convicted of the offense for which extradition is sought must be supported by “a copy of the conviction and sentence, ” and “information establishing that the person sought is the person to whom the finding of guilt refers[.]” (Id. ΒΆΒΆ 4(a)-(b)). Thus, this Extradition Treaty requires that the foregoing evidence to support a probable cause ...


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