United States District Court, D. Connecticut
IN THE MATTER OF THE EXTRADITION OF MANEA ORTANSA MIRELA
RULING ON REQUEST FOR EXTRADITION
Glazer Margolis, United States Magistrate Judge
August 14, 2015, this Magistrate Judge signed a complaint and
arrest warrant for the arrest of Manea Ortansa Mirela
[“Manea”],  in accordance with the Extradition
Treaty between the United States and Romania, and 18 U.S.C.
§ 3184. (Dkt. #1). 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). 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).
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).
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.
August 2, 2016, the Government filed the pending Motion for
Extradition. (Dkt. #32). 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.
October 24, 2016, defendant filed her brief in opposition to
the Government's Motion for Extradition, with multiple
exhibits attached. (Dkt. #38; see also Dkts. ##39-41).
On January 18, 2017, the Government filed its reply brief,
with multiple exhibits in support. (Dkt. #52; see
Dkts. ##42-43, 47-48). On February 17, 2017, defendant filed
a sur-reply brief (Dkt. #60; 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).A hearing was held pursuant to 18 U.S.C.
§ 3184 on March 22, 2017. (Dkt. #62).
reasons set forth below, the Government's Motion for
Extradition (Dkt. #32) is granted.
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).
was born in 1963 in Pantelimon, Ilfov Country, Romania. (Dkt.
#38, at 19).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).
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 from the police department, Manea
received a visa to travel to the United States. (See
Dkt. #38, Exh. A ¶¶ 4, 10 & Exh.
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).
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). 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). Two other
co-conspirators, Ciocan Marian and Zega Macedon Anton, were
also charged. (Dkt. #32, at 5).
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). An extension of her stay
in the United States was approved on April 8, 1998. (Dkt.
#38, Exh. F).
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. (Dkt. #1, Att. B at 23-53 & Att. C
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).
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
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.
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. (Dkt. #38, Exh. M).
PRINCIPALS OF EXTRADITION LAW
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. 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.
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).
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
U.S.-ROMANIAN EXTRADITION TREATY & AUTHENTICATION OF
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,  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.
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).
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
RELEVANT PROVISIONS OF THE EXTRADITION TREATY
ARTICLE 1: OBLIGATION TO EXTRADITE
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). 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[.]”
contends that Romania's failure to provide a copy of the
1997 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).
ARTICLE 2: EXTRADITABLE OFFENSES
“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).
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 favor 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).
relying on the report of her expert,  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). Accordingly, the requirement for dual
criminality has been satisfied.
ARTICLE 6: STATUTE OF LIMITATIONS
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 is “plainly discretionary[,
]” and such discretion “is properly left to the
Department of State.” (Dkt. #52, at 11-12)(citation
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.
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.
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). 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).
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
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); 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”).
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).
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
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.
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).
SUFFICIENCY OF THE EVIDENCE
ARTICLE 8: EXTRADITION PROCEDURE & REQUIRED
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
case, Manea contends that Romania has not provided
“certain portions of the Romanian Criminal Code[,
]” namely Articles 33 and 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. (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.
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. ¶¶ 4(a)-(b)).
Thus, this Extradition Treaty requires that the foregoing
evidence to support a probable cause ...