Mirela v. United States

          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 ...