In re Extradition of Azra Basic, 5:11-MJ-5002-REW
| Decision Date | 27 July 2012 |
| Docket Number | No. 5:11-MJ-5002-REW,5:11-MJ-5002-REW |
| Parties | IN RE EXTRADITION OF AZRA BASIC |
| Court | U.S. District Court — Eastern District of Kentucky |
The Court finally evaluates1 the Complaint2 for extradition filed by the United States against Azra Basic ("Basic" or "Respondent"), who stands accused of 1992 war crimes in Bosnia & Herzegovina. After considering the full record, the voluminous briefing, the relevant treaty and conventions3 , and the applicable standards, the Court CERTIFIES Basic as subject to extradition under 18 U.S.C. § 3184. The Secretary of State will make the ultimate decision on extradition. However, a lawful basis to extradite exists, as detailed in this decision.
On March 9, 2011, the United States, on behalf of the government of Bosnia & Herzegovina ("BiH"), filed a verified complaint to extradite Basic, a naturalized United States citizen, pursuant to 18 U.S.C. § 3184, the Treaty Between the United States andServia for the Mutual Extradition of Fugitives from Justice, and the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. DE #1 (Complaint). The United States Marshals arrested Basic pursuant to a complaint-based warrant on March 16, 2011.
The Court conducted Basic's initial appearance on March 17, 2011, and appointed Hon. Patrick F. Nash to represent her pursuant to the Criminal Justice Act. DE #7 (Minute Entry). The Court remanded Basic to custody. Id. On the same date, the United States filed a Notice of Memorandum in Opposition to Bail, DE #4, a Notice of the Law of Extradition, DE #5, and a Notice of Croatian Consulate, DE #6.
The Court conducted a status conference on April 1, 2011, and granted Respondent's request for an extension of time to file substantive motions. DE #14 (Minute Entry). Basic filed a motion to dismiss on April 29, 2011, DE #18, and additionally filed a response brief to the United States's Notice of the Law of Extradition, DE #24. The United States responded to Basic's motion to dismiss on May 20, 2011, DE #25, and Basic replied on June 6, 2011, DE #31. The Court conducted a second status conference on July 8, 2011, ordered additional briefing,4 and granted the United States's motion to file a sur-reply to the motion to dismiss, DE #36. DE #35 (Minute Entry).
The United States filed its post-status conference brief on July 22, 2011, DE #37, and Basic responded on August 5, 2011, DE #42.5 The United States moved to amend the Complaint on August 19, 2011. DE #45 (Motion). The Court conducted a third status conference on August 22, 2011, and ordered briefing on the motion to amend. DE #47 (Minute Entry). Basic ultimately responded and did not object to amendment. DE #52 (Response). The Court granted the United States's motion and ordered a redacted copy of the amended complaint filed in the record. DE ##53 (Order); 51 (Redacted Amended Complaint).
The United States filed a pre-extradition hearing memorandum on November 3, 2011. DE #62 (Memorandum). The Court issued an Order and Opinion on November 4, 2011, denying in part and deferring in part Basic's motion to dismiss.6 DE #63 (Order and Opinion). The Court conducted the extensive final extradition hearing on November 7, 2011, and ordered additional briefing on (1) the effect, if any, of the alternative holding of Grin v. Shine, 23 S. Ct. 98, 102 (1902), (2) the effect, relative to Grin, of 18 U.S.C. § 3196, and (3) the Court's sources for the criminal and procedural codes of BiH and Republika Srpska. DE #65 (Minute Entry). Respondent addressed the first two issues in a post-hearing trial brief filed on November 11, 2011. DE #66 (Trial Brief). The United States responded on the issue of source authority on November 17, 2011, DE #70, and responded to Basic's post-hearing brief on November 28, 2011, DE #74.
On December 9, 2011, the United States sought leave to file a memorandum and supplemental authority regarding the term "civilian." DE #80 (Motion). Basic responded in opposition on December 16, 2011. DE #83 (Response). That motion remains pending. The Court permitted the United States to file a notice of authority, citing Skaftouros v. United States, 667 F.3d 144 (2d Cir. 2011). DE ##85 (Order); 86 (Notice of Citation).
In this ably-lawyered case, the request for certification is ripe for decision.
The Court conducted a plenary final hearing after several preliminary hearings or conferences on procedural and scheduling issues. Both sides had a full and fair chance to offer proof and argument within the relatively limited scope of an extradition hearing. Neither the rules of evidence or of criminal procedure apply in the extradition context. Fed. R. Crim. P. 1(a)(5)(A); Fed. R. Evid. 1101(d)(3). A detention hearing is sui generis. Snider v. Seung Lee, 584 F.3d 193, 203 n.2 (4th Cir. 2009) () (citations omitted). Hearsay is proper. United States ex rel. Klein v. Mulligan, 50 F.2d 687, 688 (2d Cir. 1931). The Court evaluates for probable cause, and the responding party may offer "explanatory" evidence but may not contradict probable cause through evidence offered at the hearing. See, e.g., Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006); see also Skaftouros v. United States, 667 F.3d 144, 155 n.16 (2d Cir. 2011) ().
The United States simply tendered the verified prosecution documents submitted by BiH to the State Department in support of the request for extradition. It did not offer additional proof at the hearing. Those documents, DE ##1-1-15, were available to bothsides and to the Court.7 Respondent agreed and the Court finds that the packet (as well as other authenticated tenders in the record) complies with the requirements of 18 U.S.C. § 3190 in terms of appropriate authenticity and thus admissibility. The pre-hearing brief of the United States detailed its probable cause arguments. DE #62 (Pre-Hearing Memorandum).
The Court permitted Defendant to retain a requested expert prior to the hearing, DE #57 (Sealed and Ex Parte Order), to offer witnesses on the issue of flight,8 and to make a complete argument. The Court finds the evidence offered appropriate and admissible. The flight evidence directly concerns a statute of limitations analysis. The expert proof offered helpful explanation about the regional history, ethnic associations, and historical animosities in the Balkans. Basic did not attempt to use that evidence to undercut probable cause but rather to provide overall context for a difficult and troubling record. For that purpose, the testimony from Professor Mingst was proper and allowable.9
Professor Mingst helpfully articulated geographic and political elements, specific to the region, that inform the case. She provided a valuable history lesson on Yugoslavia's dissolution and the states that emerged. Her depiction of the ethnic divisions within and about the area of BiH, and some of the linguistic and other details of the people, fortify the Court's understanding.
The other witnesses—Lucille Loman and Edith Fultz—depicted Basic's lifestyle in the United States. Without contradiction, these women testified with personal knowledge that Basic lived openly and under her correct personal identifiers for years in this District. Although each gave limited testimony related to Basic's experiences in BiH, the primary point of the testimony was that Basic has not, in this nation, acted secretively about her name, person, address, employment, and identifiers.
The parties argued about probable cause particulars, which the Court addresses in a separate section below. Respondent criticized the charge specifics, the state of the record, and the reliability of certain photo identification steps undertaken by BiH. The Court evaluated all matters argued.
As to jurisdictional and other procedural requisites in this extradition case, the Court finds the following:
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