In re Extradition of Mironescu

• Decision Date: 04 December 2003
• Docket Number: No. 103M205-1.,103M205-1.
• Parties: In the Matter of the EXTRADITION OF Petru MIRONESCU
• Court: U.S. District Court — Middle District of North Carolina

296 F.Supp.2d 632

In the Matter of the EXTRADITION OF Petru MIRONESCU

No. 103M205-1.

United States District Court, M.D. North Carolina.

December 4, 2003.

Federal Public Defender, Greensboro, NC, for Petru Mironescu (1), defendant.

MEMORANDUM AND ORDER ON EXTRADITION

DIXON, United States Magistrate Judge.

Before this court is the Criminal Complaint against Petru Mironescu (docket no. 2) and the Romanian Request for Extradition (exhibit nos. 1 and 6). On November 10, 2003, this court conducted a bail hearing. Because the issues presented at the bail hearing were so intertwined with the issues to be presented at the extradition hearing, the bail hearing was continued for one week and merged with an extradition hearing. On November 17, 2003, this court conducted an extradition hearing pursuant to 18 U.S.C. § 3184. Briefs were filed by both parties for both hearings. The matters are ripe for disposition.

I. Background

These extradition proceedings were commenced by the United States pursuant to 18 U.S.C. § 3184 and the Treaty on Extradition between the United States and Romania, signed July 23, 1924 and entered into force on April 7, 1925. Extradition Treaty, July 23, 1924, U.S.-Rom., 44 Stat. 2020. A copy of this Treaty has been filed with the court (exhibit no. 14). Petru Mironescu was arrested on October 31, 2003, after Romanian authorities presented a formal request for Defendant's extradition, supported by appropriate documentation.

Romania seeks Defendant's extradition, not merely for prosecution of an offense, but rather because he has already been prosecuted and convicted. Defendant has been sentenced to three years imprisonment for entering a partnership for committing auto thefts, three years imprisonment for instigation of aggravated theft, and three years imprisonment for bringing a motor vehicle with false license plates into traffic. See Romanian Request for Extradition p. 2 (translated into English) (exhibit no. 6). Defendant's sentences were merged to a 4 year term of Imprisonment. Id.

At trial, Defendant did not contest that he was the one whom Romania was seeking to extradite. Rather, he claimed that he had not committed the crimes, and that his prosecution, conviction, and the request for his extradition were part of the Romanian government's retaliation for his leadership of the Roma (or Gypsy) people and the ensuing conflicts with the Romanian establishment. Defendant argued, among other things, that he could not be extradited because of the United Nations Convention Against Torture (Torture Convention)(opened for signature Feb. 4, 1985, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708(1984), reprinted in 23 I.L.M. 1027 (1984), modified in 24 I.L.M. 535 (1985), http://www1.umn.edu/humanarts/instree/h2catoc.htm), which became law in the United States on November 20, 1994.

Article 3.1 of the Torture Convention requires that "[n]o State Party shall expel, return, (`refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Id. Congress enacted language specifically relating to this provision in the Foreign Affairs Reform and Restructuring Act (FARR Act) of October 21, 1998.¹ The discussion that follows will focus, first, on the extradition hearing and the role of a magistrate judge when faced with the type of evidence presented here; and, second, on the significance of the Torture Convention and the possibility that it will inform subsequent proceedings in this case.

II. Discussion

It is only because the United States has an extradition treaty with Romania that the United States has authority and duty to extradite: current United States extradition statutes only authorize extradition in compliance with an extradition treaty. Specifically, 18 U.S.C. § 3184 gives judicial officers authority to determine the extraditability of any fugitive "[w]henever there is a treaty or convention for extradition between the United States and any foreign government ...." In addition, 18 U.S.C. 3181(a) provides that authority to surrender persons "who have committed crimes in foreign countries shall continue in force only during the existence of any treaty of extradition with such foreign government." With an extradition treaty in place between the United States and Romania, this court has proceeded with an extradition hearing, and, at the request of Defendant, a bail hearing. The issue of bail will be discussed first.

The Granting of Bail in International Extradition Proceedings

Because an international extradition proceeding is not a criminal case, the Bail Reform Act, 18 U.S.C. §§ 3141 et seq. does not apply. Similarly, the criteria governing the allowance and the amount of bail in United States criminal cases, found in 18 U.S.C. § 3142(g), are not applicable. See Kamrin v. United States, 725 F.2d 1225, 1227-28 (9th Cir.1984). No other statute addresses the setting of bail in international extradition cases.

The case law is settled, and the Defendant concedes, that bail should not be granted in international extradition proceedings except in "special circumstances." See Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948 (1903). In his Memorandum of Law in Support of Ball, Defendant argues that "`special circumstances' exist in this case" because "the government will not be able to establish sufficient probable cause to justify extradition." Memorandum p. 2 (docket no. 10). This court acknowledges that a district court in the Fifth Circuit has held that a substantial likelihood of success on the merits at the extradition hearing constitutes "special circumstances" sufficient to justify bail pending the extradition hearing. See In re: Ricardo Gonzalez, 52 F.Supp.2d 725, 736 (W.D.La.1999). Nevertheless, this court found that the evidence presented at the bail hearing did not sufficiently demonstrate the absence of probable cause, and therefore, merely expedited the extradition hearing in order to address these concerns in a timely manner. Because the extradition hearing is complete, and this court will certify this matter to the Secretary of State, the issue of bail in the interim between the commencement of extradition proceedings and certification is moot.

Limited Scope of Extradition Hearings

The Fourth Circuit recognizes only a limited scope for extradition hearings. "[T]he purpose of an extradition hearing is to `Inquire into the presence of probable cause to believe that there has been a violation of one or more criminal laws of the extraditing country, that the alleged conduct, if committed in the United States, would have been a violation of our criminal law, and that the extradited individual is the one sought by the foreign nation for trial on the charge of a violation of its criminal laws.'" Peroff v. Hylton, 563 F.2d 1099, 1102 (4th Cir.1977) (citing Peroff v. Hylton, 542 F.2d 1247 (4th Cir. 1976)).² Nothing in this language provides a magistrate judge with the jurisdiction to consider the human rights conditions of the country requesting extradition.

This limited scope has been further constrained by the "rule of non-inquiry" adopted by the federal courts which, in the context of an extradition hearing, disallows judicial inquiry into the human rights practices or actual motive for extradition of countries with whom the United States has an extradition treaty. See e.g., Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 n. 5 (9th Cir.2000); Lopez-Smith v. Hood, 121 F.3d 1322 (9th Cir.1997); United States v. Kin-Hong, 110 F.3d 103 (1st Cir.1997); Martin v. Warden, Atlanta Pen, 993 F.2d 824 (11th Cir.1993).³ This rule has grown from the understanding that the Secretary of State should be the one to make a final decision about our obligations to other nations in the context of extradition. See Shapiro v. Ferrandina, 478 F.2d 894 (2nd Cir.1973) ("Since such a ruling can only be advisory in character, and in certain circumstances might cause embarrassments to the executive branch in the conduct of foreign affairs, arguably it should be left to the Secretary of State to determine whether to seek to impose any limitations since he alone will have the duty of making a response if the requesting state chooses not to follow our limitations."); Ahmad v. Wigen, 910 F.2d 1063, 1067 (2nd Cir.1990) ("It is the function of the Secretary of State to determine whether extradition should be denied on humanitarian grounds."). Because the final decision to extradite comes from the State Department, pleas for refusal of extradition based on the possibility of torture are properly handled by the Secretary of State, or so goes the argument. See Zachary Margulis-Ohnuma, Saying What the Law Is: Judicial Review of Criminal Aliens' Claims Under the Convention Against Torture, 33 N.Y.U. J. INT'L L. & POL. 861 (2001). The Torture Convention: New Obligations on Federal Courts?

The scope of extradition hearings in the Fourth Circuit and the rule of non-inquiry appear to leave little room for this court to consider Defendant's allegations that his Romanian conviction is bogus and that extradition will result in his death. Nonetheless, Defendant's contention that Article 3 of the Torture Convention places new obligations on Federal Courts is not without merit. In fact, the Ninth Circuit and recent scholarship have suggested the same,⁴ finding discussions of whether or not the treaty is self-executing (or whether or not it has since been executed)—discussions which have been used to block judicial implementation of the Torture Convention⁵ —to be insignificant in the face of an Article 3 claim of torture.

The Ninth Circuit has held that the obligation of the United States not to extradite one who faces torture is binding, and that the Secretary's decision to extradite an individual is, therefore, reviewable through a petition for writ of habeas corpus.

In Cornejo-Barreto, we held...