In re Extradition of Platko

• Citation: 213 F.Supp.2d 1229
• Decision Date: 26 July 2002
• Docket Number: CASE NO. 02mg0798-LAB.
• Parties: In the Matter of the EXTRADITION OF Stefan PLATKO.
• Court: U.S. District Court — Southern District of California

Page 1229

213 F.Supp.2d 1229

In the Matter of the EXTRADITION OF Stefan PLATKO.

CASE NO. 02mg0798-LAB.

United States District Court, S.D. California.

July 26, 2002.

Benjamin J. Coleman, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.

Patrick K. O'Toole, U.S. Attorneys, by Christopher P. Tenorio, Assistant United States Attorney, San Diego, CA, for the Government.

MEMORANDUM DECISION DENYING CERTIFICATION OF EXTRADITABILITY

BURNS, United States Magistrate Judge.

This matter is before the court on a request from the government of the Czech Republic for the extradition of Stefan Platko ("Platko") pursuant to the Extradition Treaty between the United States of America and Czechoslovakia of July 2, 1925 and the Supplementary Treaty of August 28, 1935 (collectively "Treaty"). On April 4, 2002, the United States Attorney filed a Complaint For Arrest With A View Towards Extradition Pursuant To Title 18 U.S.C. § 3184. On April 4, 2002, Magistrate Judge Ruben B. Brooks issued a warrant for Platko's arrest. Dkt No. 5. Platko was taken into custody on April 10, 2002.¹ On June 17, 2002, Platko, represented by counsel, filed a Response And Opposition To Government's Extradition Request. Dkt No. 13. On July 1, 2002, the government filed a Response And Opposition To Platko's Memorandum. Dkt No. 17. On July 5, 2002, Platko filed a Reply Memorandum.

On July 9, 2002, this court held a hearing on the extradition request as required under 18 U.S.C. § 3184. Christopher P. Tenorio, Esq. appeared on behalf of the government. Benjamin L. Coleman, Esq. appeared on behalf of Platko, who was present at the hearing. After careful consideration of the papers, the record presented arguments of counsel, and legal authority, the court finds the government has not provided certain evidence required to be presented under the Treaty and has not met its burden to establish probable cause. Accordingly, the court DENIES CERTIFICATION OF EXTRADITABILITY.

I.

The Prague Municipal Court issued a warrant for Platko's arrest dated July 21, 1998 ("Warrant" or "the Warrant"). Def.'s Resp. and Opp'n Ex. "D". Two Czech Republic indictments, dated February 28, 1995 and May 2, 1995, and the Warrant based on the indictments, have been provided in support of the extradition certification request. Id., Exs. "B", "C". The February 28, 1995 indictment names Platko only; the May 2, 1995 indictment charges Platko and two co-defendants who purportedly confessed and implicated Platko. Platko is wanted in the Czech Republic on fraud and embezzlement charges arising out of his business dealings there in 1992 and 1993. The Warrant charges Platko with two counts of fraud, in violation of Article 250, Paragraphs One and Four of the Czech Criminal Code, and one count of fraud and embezzlement, in violation of Article 248, Paragraphs One and Two of the Czech Criminal Code. Id., Exs. "B", "C", "D".

From the documents lodged with the court in support of the extradition request, the following facts emerge: During the early 1990s, Platko was a businessman in Prague involved in the purchase and sale of industrial goods and foodstuffs. The February 28, 1995 indictment and the Warrant identify eleven discrete and allegedly fraudulent transactions from January 1992 through July 1993 by date, place, goods acquired, and invoice numbers. Platko allegedly acquired goods such as cigarettes, alcoholic beverages, food, and clothing, without intention to pay for them. Def.'s Resp. and Opp'n, Exs. "B", "D". For five of the transactions, the Warrant states that "he has not paid" the issued invoices, and for three others that he "has not settled" the invoices, from which it could be inferred either he made no payments or he paid some but not all of the amounts owed. For the remaining three transactions, the accusations state Platko actually made partial payments. With respect to the fraud and embezzlement charge, Platko allegedly leased a facsimile machine on February 3, 1993, did not make the lease payments; then in April 1993, he gave the machine to a third party as security for a loan which he did not pay back, thus misappropriating the machine. Id. The charges recite the machine had been "entrusted to him that belonged to another person" and he "misled another person to the detriment of the property of this person. ..." Id.

The May 2, 1995 indictment and the Warrant identify seven discrete and allegedly fraudulent transactions in which Platko purportedly acted in concert with the two co-defendants in August, September, and December 1993. They allegedly acquired goods such as brake disks, food-stuffs, beer, tires, coffee, and tickets and were involved in two allegedly fraudulent loan transactions. Def.'s Resp. and Opp'n, Exs. "C", "D".

The Warrant recites that "a main hearing on the matter" had been ordered for November 18 and 21, 1996, that Platko "personally received the summons on 25 September 1996," that he did not appear at the hearing, and that thereafter he could not be found. Def.'s Resp. and Opp'n Ex. "D", p. 7. The Warrant also states that a warrant for Platko's arrest was issued on December 17, 1996, "which is still valid." Id. No transcript of the hearing nor any affidavit in support of the facts recited in the charging documents has been provided as part of the record.

The Warrant also states Czech Republic police reported on July 20, 1998 that Platko was residing in the United States, having come here in October 1996 on a tourist visa that was valid for six months. He married a United States citizen—allegedly to obtain permanent residence in the U.S.—and had since divorced. Id., pp. 78. The Warrant issued on July 21, 1998. In reliance on the Treaty (Def.'s Resp. and Opp'n Ex. "A"), the Czech Republic has formally requested Platko's extradition to answer the charges specified in the Warrant.

As provided in 18 U.S.C. § 3184,² the United States government seeks certification of Platko's extraditability from this court. The government's evidence is comprised of:

(1) Certification from the Consul of the United States at Prague that the annexed photograph of Platko and statement by Presiding Judge Hodousek of Platko's identity as the Czech citizen against whom the July 21, 1998 warrant issued are properly and legally authenticated "so as to entitle them to be received in evidence" for the extradition application;

(2) Certification from the Consul of the United States at Prague that the annexed Arrest Warrant is properly and legally authenticated "so as to entitle them to be received in evidence" for the extradition application;

(3) Certification from the Consul of the United States at Prague that the annexed May 2, 1995 Indictment is properly and legally authenticated "so as to entitle them to be received in evidence" for the extradition application;

(4) Certification from the Consul of the United States at Prague that the annexed February 28, 1995 Indictment is properly and legally authenticated "so as to entitle them to be received in evidence" for the extradition application; and

(5) A January 5, 2001 sworn Declaration of Kenneth Propp, Attorney Advisor in the Office of the Legal Advisor for the Department of State, Washington, D.C. An authentication by the Secretary of State certifies Mr. Propp was, at the time of executing his Declaration, the person in the position he represents himself to be. Mr. Propp declares his office has responsibility for extradition requests, and he is charged with the extradition of Platko. He makes the following statements, among others, "based on my personal knowledge and upon information made available to me in the performance of my official duties":

a. Pursuant to the "extradition treaties in full force and effect between the United States and the Czech Republic," the Embassy of the Czech Republic submitted a request with documents in support of Platko's extradition;

b. A representation that "[i]t is the view of the Department of State that both Treaties [the July 2, 1925 treaty and the supplemental treaty entered August 28, 1935] remain in effect with . . . the two successor States to the former Czechoslovakia" and noting Treaty copies attached;

c. "The offenses for which Mr. Platko's extradition is sought is covered by Article II of the 1925 Extradition Treaty as amended by the 1935 Supplemental Treaty;"

d. The documents submitted by the Czech Republic were certified by the Consul General at the United States Embassy in Prague on November 28, 2000, "in accordance with 18 U.S.C. 3190."

(6) A copy of the "diplomatic note" requesting extradition, attached to Mr. Propp's Declaration.

No other papers, affidavits, declarations, or any testimonial transcripts have been provided in the record in support of extradition certification.

Platko opposes extradition, on grounds: (1) the Treaty does not exist between the new Czech Republic and the United States; (2) even if the Treaty were valid and enforceable, the Czech Republic has not produced depositions in support of the Warrant as required under Article XI of the Treaty; (3) only unsworn allegations have been produced to establish probable cause, an insufficient basis to issue an extradition warrant under Articles I and XI of the Treaty and under the Fourth Amendment of the United States Constitution; (4) the offenses charged are not covered by the Treaty; (5) the "dual criminality" requirement is not met with respect to the fraud charges; (6) impermissible post-indictment delay under the Sixth Amendment to the United States Constitution; and (7) 42 U.S.C. § 3184 is unconstitutional under the separation of powers doctrine because it allows the executive to revise court judgments. Def's Resp. and Opp'n.

With respect to the existence of an extradition treaty between the Czech Republic and the United States, Platko argues in support of his invalidity argument: the foreign government that entered the Treaty in 1926 has ceased to exist; the treaty was...