United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS [DOC.
2]
CHARLES S. HAIGHT, JR., Senior United States District Judge.
In this
habeas corpus action, Petitioner Manea Ortansa Mirela
(“Manea”), a native citizen of Romania who is
also a naturalized citizen of the United States, resists
Romania’s request that the United States extradite
Manea to Romania to face prosecution and punishment for
crimes she allegedly committed in Romania and for which she
was tried and convicted in absentia by Romanian
courts. The question presented, after a hearing and extensive
briefing, is whether Manea is entitled to habeas relief
barring her extradition.
I.
PROCEDURAL BACKGROUND
The
Extradition Act, 18 U.S.C. § 3181 et seq.,
governs procedures for extradition of an individual from the
United States to a foreign country. Section 3184 provides
that “[w]henever there is a treaty or convention for
extradition between the United States and any foreign
government, ” a federal judge receiving a complaint
charging any person “with having committed within the
jurisdiction of any such foreign government any of the crimes
provided for by such treaty or convention” may arrest
the individual and conduct a hearing to determine whether
there is evidence “sufficient to sustain the charge
under the provisions of the proper treaty or convention,
” in which event the judge “shall certify the
same, together with a copy of all the testimony taken before
him, to the Secretary of State, that a warrant may issue upon
the requisition of the proper authorities of such foreign
government, for the surrender of such person, according to
the stipulations of the treaty or convention, ” and
shall also “issue his warrant for the commitment of the
person so charged to the proper jail, there to remain until
such surrender shall be made.” Section 3186 provides:
“The Secretary of State may order the person committed
under § 3184 of this title to be delivered to any
authorized agent of such foreign government, to be tried for
the offense of which charged. Such agent may hold such person
in custody, and take him to the territory of such foreign
government, pursuant to such treaty.”
What
generally occurs is that a foreign government (the
“Requesting State, ” in the diplomatic parlance
of treaties) sends to the United States Secretary of State a
request that, pursuant to an extradition treaty between the
two nations, a particular individual be extradited from the
United States to the foreign country for trial on specified
crimes committed in that country. If the State Department
finds the form of the extradition request to be in order, it
refers the matter to the Department of Justice, which sends
the request to the United States Attorney for the district in
which the sought-after individual may be found. The United
States Attorney then applies to the district court pursuant
to § 3184 for the arrest of the individual, an
extradition hearing before the district court, and the
court’s certification to the Secretary of State that
the individual is extraditable. If the district court makes
that certification, the Secretary decides whether to allow or
refuse extradition.
The
case at bar follows that scenario. Romania addressed its
request for the extradition of Manea to the Secretary of
State pursuant to an Extradition Treaty between the United
States and Romania. In the litigation attendant upon
Manea’s opposition to extradition, the United States
Attorney’s Office for this District represented the
Secretary of State, who was responding diplomatically to
Romania’s request under the Treaty. Manea was
represented by the Federal Defender Office of this District.
That representation of counsel is the same in this habeas
action.
In
August 2015, Magistrate Judge Margolis of this Court signed a
complaint and arrest warrant for Manea. Judge Margolis acted
on the application of the United States (“the
Government”) on behalf of Romania. Romanian authorities
drafted the complaint, which charged Manea with convictions
in absentia by Romanian courts of crimes involving
deceit, forgery and fraud in connection with several loans
that companies officered by Manea obtained from Romanian
banks. Manea was arrested in this District on August 14,
2015, and released on bond. In August 2016, the Government,
continuing to act on behalf of Romania, filed a motion for
the extradition of Manea from the United States to Romania
for prosecution and punishment on the Romanian crimes of
conviction. Manea opposed extradition. Judge Margolis
received two rounds of briefs of counsel and multiple
exhibits, conducted a hearing, and signed a 62-page ruling
which granted the Government’s Request for Extradition.
That Ruling, signed on March 1, 2018, is reported at 2018 WL
1110252.[1]
On
April 5, 2018, Judge Margolis signed a further Ruling, 2018
WL 1634393, which is captioned: “Ruling on Motion for
an Extradition Certification and Committal Order and on
Motion to Stay Execution of Ruling and Certificate of
Extradition and Motion to Continue and/or Modify Conditions
of Release Pending Habeas Review.” That caption
reflects Manea’s determination to continue resistance
to extradition, this time in the form of a habeas corpus
petition. Judge Margolis’s April 5, 2018 Ruling granted
Manea’s motion for a stay of the certificate of
extradition pending the habeas review. On April 11, 2018,
Judge Margolis signed an “Order and Certification for
Extradition and Stay of Extradition Order” [Doc. 81]
which certified the extradition of Manea “to Romania,
on all offenses for which extradition was requested”
and, consistent with the April 5 Ruling, stayed that
certification pending a habeas review.
Thereafter,
Manea filed a Petition for a Writ of Habeas Corpus [No.
3:18-CV-537], assigned to the calendar of the undersigned.
The case has been further briefed by counsel. A hearing
before this Court was conducted on May 2, 2019. Decision was
reserved on the disputed question of whether Manea is
entitled to habeas relief from the Certification for
Extradition to Romania issued by Magistrate Judge Margolis.
That question turns upon the provisions of the Extradition
Treaty between the United States and Romania, and the present
state of habeas corpus jurisprudence in cases where
extradition is challenged.
This
description of the Procedural Background requires a reference
to a letter dated March 5, 2018 from the United States
Attorney to counsel for Manea [Doc. 76-2]. The letter
accurately states at 1 that, as of that date, Magistrate
Judge Margolis had “issued an order granting the
Government’s request that Manea be extradited to
Romania, ” but “has not yet issued an Extradition
Certification Order, which is a prerequisrite to further
proceedings in the extradition.” The United States
Attorney’s letter then undertook to explain to
Manea’s counsel the Government’s perception of
how those extradition proceedings should
progress.[2] “Certification, ” in the
Government’s view, “does not constitute a final
order and is not directly appealable. It is subject only to a
limited review by way of a petition for a writ of habeas
corpus to the district court.” Letter at 2. The United
States Attorney then delivered this advice “regarding
timing and the need to seek a court-ordered stay”:
The Department of State has informed us that, in this case,
the Secretary will render a decision on this extradition no
sooner than fourteen days after the date the Certification
Order is entered on the court’s docket.
If the fugitive properly files a habeas petition challenging
the Certification Order before the Secretary renders a
decision, the Secretary will suspend review of this
extradition, and will restart the review only if and when the
district court denies the petition.
Consequently, if a habeas petition is filed within the
fourteen days from the date the Certification Order is
entered on the court’s docket, there is no need for the
fugitive to seek a court-ordered stay of surrender during the
pendency of the habeas litigation in the district court
because the Secretary will not issue a surrender warrant, and
the fugitive will not be surrendered to the foreign authority
unless and until the district court denies the petition.
In other circumstances, if the Secretary decides to grant the
extradition request, surrender may proceed unless the
fugitive has sought and obtained a court-ordered stay.
Id. at 2-3. The particular circumstance contemplated
by the Government’s March 5, 2018, letter came to pass
when on March 30, 2018, Manea filed a petition for habeas
corpus challenging the extradition order Magistrate Judge
Margolis said she intended to sign. On April 11, 2018,
Magistrate Judge Margolis issued that order, which certified
Manea’s extradition to Romania and stayed execution of
the certification pending habeas review.
Given
this procedural posture, as of the present date the Secretary
of State has neither reviewed Romania’s request to
extradite Manea, nor decided whether to grant or refuse that
request. That is so, whether the Secretary has been precluded
by Judge Margolis’s order staying her extradition
certification, or the Secretary is following his
practice described in the Government’s
March 5 letter and suspended review of the extradition
pending the Court’s consideration of Manea’s
habeas motion. It makes no practical difference. The course
the case will take before the Secretary depends upon this
Court’s decision on Manea’s present habeas
petition. This Ruling decides it.
II.
THE EXTRADITION TREATY
As
noted in Part I, an extradition case in a federal district
court begins with an analysis of the extradition treaty
between the United States and the foreign nation seeking the
extradition of a named individual. In the case bar, Romania
requests the extradition of Manea pursuant to a treaty
between Romania and the United States.
The
Extradition Treaty between the United States and Romania
currently in force was signed on behalf of the two nations on
September 10, 2007. The relevant provisions are these:
Article
1 of the Treaty, captioned “Obligation to Extradite,
” provides: “The Parties agree to extradite to
each other, pursuant to the provisions of this Treaty,
persons to whom the authorities in the Requesting State have
charged with, found guilty of, or convicted in an
extraditable offense.” Article 2(1) provides: “An
offense shall be an extraditable offense if it is punishable
under the laws in both Parties by deprivation of liberty for
a period of more than one year or by a more severe
penalty.” Article 2(3), (3), (4) and (5) contain
further provisions particularizing the designation of an
“extraditable offense.” I need not consider them
further because Manea and the Government agree that
Manea’s charged conduct in obtaining loans from
Romanian banks, recounted in Judge Margolis’s opinion
at 2018 WL 1110252, at *15-22, if committed, give rise to
“extraditable offenses” under the Treaty.
Article
6 provides:
Extradition may be denied if prosecution of the offense or
execution of the penalty is barred by lapse of time under the
laws of the Requesting State. Acts that would interrupt or
suspend the prescriptive period in the Requesting State are
to be given effect by the Requesting State.
Article
8 of the Treaty specifies the “Required
Documents” which a foreign country must submit in
support of a request that the United States extradite an
individual. Article 8(2) and 8(3) specify documents
respecting the identity of the person sought for extradition,
the nature of the conduct in question, and particular
documents if the person “is charged with an
offense.” Article 8(4) requires the submission of
additional documents if the request is for “a person
who has been found guilty or convicted of the offense for
which extradition is sought.” Article 8(4)(d) provides
that “in the case of a person who has been found guilty
or convicted in absentia, the documents required by
paragraph 3 of this Article and information regarding the
circumstances under which the person was absent from the
proceedings” must be submitted.
III.
HABEAS REVIEW OF EXTRADITION ORDERS
Manea
challenges and seeks to avoid the extradition order issued by
Magistrate Judge Margolis. Her vehicle for doing so is the
present petition for habeas corpus addressed to this Court.
“Because extradition orders are regarded as preliminary
determinations, and not ‘final decisions’
appealable as of right under 28 U.S.C. § 1291, they may
only be reviewed by a petition for a writ of habeas corpus
under 28 U.S.C. § 2241.” Skaftouros v. United
States, 667 F.3d 144, 157 (2d Cir. 2011) (citation
omitted).
That is
the sole remedy available to an individual like Manea whose
extradition has been ordered. If a foreign government’s
request for extradition has been denied by a judicial officer
sitting as extradition magistrate, the government’s
only recourse is to file the same request before a different
judicial officer and hope for a more favorable outcome. In
United States v. Doherty, 786 F.2d 491, 496 (2d Cir.
1986), Judge Friendly said:
Under present Federal law, there is no direct appeal from a
judicial officer’s finding in an extradition hearing. A
person found extraditable may only seek collateral review of
the finding, usually through an application for a writ of
habeas corpus. The foreign government that is dissatisfied
with the results of the hearing must institute a new request
for extradition.
It is a
striking feature of extradition practice that a dissatisfied
government is entitled “to try again before the
authority, which would in no way be bound by the previous
decision.” Doherty, 786 F.2d at
503.[3]
See also Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d
Cir. 1990) (“An extraditee’s sole remedy from an
adverse decision is to seek a writ of habeas corpus; the
Government’s sole remedy is to file a new complaint. In
considering the Government’s second request, Judge
Korman was not bound in any way by Magistrate Caden’s
prior decision.”) (citing Doherty, 786 F.2d at
503).
In this
District, where there are fourteen district judges and six
magistrate judges, conceptually Romania, if initially
disappointed, could have filed nineteen additional requests,
one by one, in search of a judicial officer who would issue
an extradition order, a tedious process unnecessary in this
case because Magistrate Judge Margolis issued the order
certifying Manea for extradition on Romania’s first
try. Thus the case comes before this Court on Manea’s
petition for habeas corpus.
The
Second Circuit’s most recent decision in the law of
extradition is Bisram v. United States, No.
18-3437-pr, 2019 WL 2932755 (2d Cir. July 9, 2019). Guyana
requested the extradition from New York of Bisram, a dual
citizen of the United States and Guyana, to face charges for
a murder he allegedly committed in Guyana. A federal
magistrate judge issued a Certificate of Extraditability,
“certifying to the Secretary of State that there was
probable cause to believe that Bisram committed the charged
murder and authorizing the Secretary’s extradition of
Bisram to Guyana.” 2019 WL 2932755, at *1. Bisram filed
a petition for a writ of habeas corpus in the Eastern
District of New York, which denied the petition, concurring
in the magistrate judge’s conclusion “that there
was a ‘reasonable ground’ to believe that Bisram
committed the murder as charged.” Id. The
Second Circuit, affirming that denial of habeas relief, said:
On collateral review of an extradition order, the district
court may only “inquire whether the magistrate had
jurisdiction, whether the offense charged is within the
treaty and, by a somewhat liberal extension, whether there
was any evidence warranting the finding that there was a
reasonable ground to believe the accused guilty.”
Id., at *2 (quoting Skaftourous, 667 F.3d
at 157). The Second Circuit in Bisram phrased that
final consideration as “the extraditing country’s
threshold showing of probable cause” (emphasis
added), and held: “At a minimum, we cannot say that the
district court erred in concluding that the evidence
submitted by Guyana surpassed the minimal threshold of
‘any evidence warranting the finding that there was a
reasonable ground to believe the accused
guilty.’” Id., at *3. As stated by the
Second Circuit in Austin v. Healey, 5 F.3d 598 (2d
Cir. 1993):
[O]n appeal from the denial of habeas corpus in extradition
proceedings, the scope of our review is quite limited. We
consider only: (1) whether the judicial officer who conducted
the extradition proceedings had jurisdiction; (2) whether the
offense charged is extraditable under the terms of the
treaty; and (3) whether there was sufficient evidence to
support the finding of probable cause to extradite.
5 F.3d at 600 (emphasis added) (citations omitted).
Thus
the requesting country’s burden of proof in obtaining
extradition is the familiar standard of probable cause. The
Second Circuit expanded on that principle in
Skaftouros:
Orders of extradition are sui generis. They embody
no judgment on the guilt or innocence of the accused but
serve only to insure that his culpability will be determined
in another and, in this instance, a foreign forum. In this
way, the judicial officer’s function is much the same
as his accustomed task of determining if there is probable
cause to hold a defendant to answer for the commission of an
offense. As we have stressed in the past, [w]hat is at issue
in the proceeding . . . is not punishability but
prosecutability.
667 F.3d at 155 (emphasis in original) (citations and
internal quotation marks omitted).
In
addition, the Second Circuit made it plain, in another case
of a habeas petition challenging an extradition order, that
“[i]n attacking the weight and competence of the
evidence” the requesting country submits to demonstrate
probable cause, the targeted extraditee “labors under
two sets of difficulties.” Shapiro v.
Ferrandina, 478 F.2d 894, 900 (2d Cir. 1973) (Friendly,
J.). Shapiro continues:
First, the function of the extraditing magistrate is not to
decide guilt or innocence but merely to determine whether
there is competent legal evidence which would justify his
apprehension and commitment for trial if the crime had been
committed in that state. 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’s hearing.
Id. at 900-01 (citations, internal quotation marks
and ellipses omitted).[4] In Bisram, the Second Circuit
further cited and quoted Shapiro for the proposition
that “statements [that] would in no way explain . . .
or . . . obliterate the government’s evidence, but
would only pose a conflict of credibility . . . should
properly await trial in the [country seeking
extradition].” Bisram, 2019 WL 2932755, at *2
(quoting Shapiro, 478 F.2d at 905). See also
Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984)
(“In the exercise of the extraditing judge’s
discretion, a fugitive may be permitted to offer explanatory
testimony, but may not offer proof which contradicts that of
the demanding country.”) (cited and quoted in
Bisram).
IV.
DISCUSSION
In
resisting extradition during the proceedings before
Magistrate Judge Margolis, Manea made a number of
unsuccessful contentions which are not reiterated in this
habeas petition. I say nothing about those, and turn instead
to the claims Manea asserts in support of the petition. There
are three: (1) there is no showing of probable cause, of the
sort required to justify extradition; (2) extradition is
precluded because the underlying prosecution is time-barred;
and (3) extradition should be denied because of humanitarian
and torture-risk concerns. I consider these contentions in
order.
A.
Probable Cause
The
core of Romania’s several claims against Manea is bank
fraud. The Romanian court and prosecutorial documents
supporting the extradition request describe a number of
instances of a company owned by Manea borrowing significant
sums from Romanian banks, ostensibly for business purposes,
where the monies borrowed were used instead for unrelated
personal needs and the loans were never repaid. Manea
obtained these loans, Romania charges, by a number of
fraudulent means, including forgery. As Manea acknowledges in
her main brief on this petition, Doc. 9 at 22, Magistrate
Judge Margolis found that this alleged conduct
“constituted offenses in both countries, ”
Romania and the United States, thereby qualifying
Manea’s actions as “an extraditable
offense” under Article 2 (1) of the Treaty.
Manea’s habeas petition does not challenge that
finding. Her principal present contention is that the laws of
both countries specify intent as a necessary element of
fraud, and the supporting documents fail entirely to allege
Manea’s intent, an omission fatal to a showing of
probable cause in aid of extradition. Manea’s brief
argues:
As is typical with American fraud statutes, the ones cited
all involve a mens rea of intent to deceive or defraud. . . .
Similarly, the Romanian statutes cited by the Magistrate
Court in its order almost all have an intent element. . . .
And yet, the evidence of probable cause, accepted from the
findings of the Romanian court, does not establish probable
cause for the violation of any of those statutes –
state, federal or Romanian – because it does not
establish the necessary element to defraud. The Magistrate
Judge’s order quotes extensively from the findings of
the Bucharest court – those findings take up 16 of the
62 pages in the order. They contain numerous examples of
documentation submitted by Ms. Manea in regard to various
loans, yet those findings, broken down into six categories,
contain no evidence of Ms. Manea’s alleged state of
mind. As such, they have not demonstrated probable cause with
respect to the offenses that have intent to deceive as an
element.
Without any showing of probable cause of the necessary
element of intent to deceive, the material from the Bucharest
court is not sufficient to show probable cause that she
committed the analogous American crimes that are offered as
meeting the dual criminality standard.
Doc. 9, at 23-24. The proffered supporting documents are
insufficient in that regard, Manea’s argument
concludes, because “the demonstration of mens rea, as
opposed to the evidence of specific factual transactions, is
conclusory.” Id., at 24.
While
the argument for Manea on this point is forcefully expressed,
I find myself unable to accept it. The contention depends on
the premise that Romania’s evidence concerning
Manea’s criminal intent is insufficient because it is
“conclusory, ” that is to say, there is no direct
or explicit evidence that Manea intended to defraud the banks
who loaned Manea’s companies monies that were never
repaid – in the vernacular, no evidentiary
“smoking gun” on the element. That absence of
evidence on the point may be acknowledged, but it avails
Manea nothing because American criminal law does not require
such evidence. In United States v. Heras, 609 F.3d
101, 106 (2d Cir. 2010), which considered the sufficiency of
evidence convicting an individual of joining a conspiracy
with the intent to commit its criminal objective, the Second
Circuit said: “Proof of such intent need not have been
direct. The law has long recognized that criminal intent may
be proved by circumstantial evidence alone, ” a
principle of broad application. “[A]s a general rule
most evidence of intent is circumstantial.” United
States v. Salameh, 152 F.3d 88, 143 (2d Cir. 1998).
That
principle controls the case at bar. The “analogous
American crime” that Romania “offered as meeting
the dual criminality standard” is bank fraud, a form of
conspiracy falling within the general rule that “most
evidence of intent is circumstantial.” The Second
Circuit’s articulation of that principle in cases
affirming convictions after trial applies a fortiori
to Manea’s extradition case, where the Government need
only demonstrate probable cause rather than prove guilt.
Romania is not precluded by American law from making that
showing of probable cause by means of circumstantial
evidence, which under the cited cases Manea cannot be heard
to dismiss as “conclusory.”
In the
case at bar, there is a considerable amount of circumstantial
evidence from which a reasonable inference of Manea’s
criminal intent in her companies’ dealings with
Romanian banks could be drawn. That evidence includes bank
records, company records, and the statements of eight
witnesses. Those documents, discovered during or generated by
the Romanian criminal court proceedings, were duly
authenticated by Romania and submitted in support of
Romania’s request to the United States Secretary of
State for the extradition of Manea. The documents were made
exhibits during the extradition proceeding before Magistrate
Judge Margolis, and are also before this Court as part of the
record in this habeas proceeding. Judge Margolis’s
summary and description of the contents of these documents,
2018 WL 1110252, at *14-25, are entirely accurate, and I
accept them as my own. In consequence, the evidence contained
in these documents constitutes a part of the record in this
habeas proceeding. This evidence is probative of the
circumstances attendant upon Manea’s dealings on behalf
of her companies with Romanian banks.
Manea
does not deny that her companies borrowed considerable sums
from the Romanian banks and did not repay them. The full
panoply of circumstances surrounding those loans, for the
most part undisputed, are sufficient to support a permissible
inference of Manea’s fraudulent intent, based upon
circumstantial evidence admissible for that purpose.
During
the extradition hearing before the Magistrate Judge, Manea
made a number of objections to or comments upon this evidence
which Judge Margolis overruled or declined to follow. On this
habeas petition, Manea does not press all those contentions.
Manea’s argument on the probable cause issue focuses
solely on the question of her intent while dealing with the
banks – a dead aim revealed by this passage from her
main brief, which after describing a number of banking
documents goes on to say:
In each of these excerpts, the falsity of the relevant
documents is explained – items pledged for collateral
that were already pledged to others, descriptions of the
purpose of loans that, once dispersed, were not carried
through, etc. But they lack any specific evidence that Ms.
Manea had a guilty intent. Indeed, they conclude the
presence of her intent. That is, they draw an inference from
the facts presented to reach a legal conclusion.
Doc. 9, at 22-23 (emphasis in original). The problem with
Manea’s analysis is that the drawing of an inference
from circumstantial evidence that a fact exists for which
there is no specific evidence is precisely the form of ...