In re Mujagic, Criminal Action No. 5:12–MJ–0529 (DEP).

Decision Date02 April 2013
Docket NumberCriminal Action No. 5:12–MJ–0529 (DEP).
PartiesIn the Matter of the EXTRADITION OF Sulejman MUJAGIC.
CourtU.S. District Court — Northern District of New York

OPINION TEXT STARTS HERE

Richard S. Hartunian, Carla B. Freedman, Esq., Assistant U.S. Attorney, United States Attorney for the Northern District of New York, Syracuse, NY, Ivana A. Nizich, Esq., U.S. Department of Justice, Washington, DC, for the United States.

Lisa A. Peebles, Acting Federal Public Defender, Randi Juda Bianco, Esq., Assistant Federal Public Defender, Syracuse, NY, for Sulejman Mujagic.

DECISION, ORDER, AND CERTIFICATE OF EXTRADITABILITY

DAVID E. PEEBLES, United States Magistrate Judge.

The government of Bosnia and Herzegovina (“BiH”) has formally requested the extradition of Sulejman Mujagic, who is a lawful permanent resident of this country, pursuant to a treaty in effect between the United States and BiH, so that he may stand trial for the alleged murder of one unarmed enemy combatant and the torture of another during the course of hostilities within BiH in the 1990s. That request, in turn, has precipitated the filing of a complaint in this court by the United States, pursuant to 18 U.S.C. § 3184, seeking the issuance of an arrest warrant for Mujagic, and requesting that the court conduct proceedings to determine whether to certify to the United States Department of State (Department of State) that the requirements for extradition under the applicable treaties have been met.

Having considered the properly authenticated documents now before the court, and after hearing oral argument concerning BiH's request, I conclude that the requirements for extradition have been satisfied. Accordingly, I now certify that fact to the Department of State, with whom the final determination as to whether extradition should be granted rests.

I. BACKGROUNDA. Underlying Facts

In or about 1990, BiH, formerly a part of the Socialist Federative Republic of Yugoslavia (“SFRY”), declared its independence and established its own government and army. Memorandum in Support of Extradition (Dkt. No. 2) at P24; Compl. Exh. (Dkt. No. 1–1) at 99.1 Various dissident groups, including Serbs, Croats, and certain Bosnian Muslims opposed the independence of BiH, separated from the central BiH authorities in Sarajevo in or about April 1992, and fought against BiH forces. Extradition Request at P24. Among those dissidents were residents of northwestern BiH, who proclaimed independence from the BiH government, established a state known as the Autonomous Province of Western Bosnia (“APZB”), and formed their own army. Id.

At the relevant times, Sulejman Mujagic, a citizen of BiH born in Gornja Slapnica, in the municipality of Velika Kladusa, served as a commander of the 2nd Battalion of the 1st Brigade of the APZB army. Extradition Request at P8, P20, P24, P38. Mujagic and his troop were among those engaged in a conflict with the BiH army on March 6, 1995, in the area of Kumarice, east of Velika Kladusa, in northwestern BiH. Id. at P8. During the fighting, three members of the BiH army, including Ekrem Baltic, Nisvet Cordic, and a third unnamed soldier, were taken prisoner and disarmed by Mujagic and other APZB militants. Id.

Following their surrender and disarmament, Baltic, Cordic, and the third soldier were interrogated, beaten, kicked, and struck with rifle stocks by Mujagic and other soldiers under his command. Extradition Request of P10, P24, P30. After Baltic refused Mujagic's demand that he disclose the name of his commander in the BiH army, Mujagic summarily shot and killed him by firing five or six bullets at close range with an automatic assault rifle into his chest. Id. at P10, P24, P29. Mujagic and the other APZB soldiers then turned to Cordic and the third soldier, and resumed beating them. Id. at P12, P24, P30. Mujagic shot Cordic in the lower leg and kicked the area of the gunshot wound after Cordic fell to the ground. Id. As a result of the assault, Cordic suffered a broken shin bone. Id. Mujagic then ordered Cordic to crawl up a nearby hill, during which time Mujagic and his fellow APZB combatants fired multiple bullets towards Cordic, resulting in additional injuries to his back and leg. Id. at P13, P24. When Cordic finally managed to successfully crawl up the hill, he was beaten again by Mujagic, and denied medical care. Id. at P14–15.

Immediately following the end of hostilities in BiH, Mujagic escaped, initially to Croatia in August of 1995, and later to the United States in 1997. 2 Extradition Request at P18. At the time the government of BiH made its extradition request, Mujagic was living in Utica, New York, within this district. Id. at P20.

B. Proceedings in BiH

On May 11, 1996, criminal charges were filed against Mujagic, alleging the unlawful killing of Baltic and wounding of Cordic, in violation of Article 146 of the Criminal Code of SFRY.3 Extradition Request at P29–31. The document lodging those charges is signed by Edham Veladzic, who is identified as the Head of Center of Security Services, Criminal Police Department for the BiH Ministry of Interior, and is addressed to the Supreme Public Prosecutor's Office. Id. at 31. The charges were then forwarded to an investigating judge of the Federation of BiH Cantonal Court in Bihac on August 27, 1996, for the purpose of commencing the judicial phase of proceedings against Mujagic based upon the underlying charges. Id. at P32–33.

Following an investigation by the Cantonal Court in Bihac, a decision was issued on April 19, 2001, in which the court found “reasonable doubt” to conclude Mujagic violated Article 158 of the Federation Criminal Code by the killing and wounding of an enemy. Extradition Request at P32–P33. On January 22, 2008, the Cantonal Court in Bihac ordered Mujagic's arrest and detention based on its finding that reasonable doubt supported the allegations that he violated Article 158 of the Federation Criminal Code. Id. at P27–28. On that same date, the court also entered an order authorizing the issuance of an international warrant for Mujagic's arrest. Id. at P35–37. Although the materials submitted in support of BiH's extradition request does not include the warrant actually issued in accordance with this decision, on February 14, 2013, the United States filed an INTERPOL diffusion notice dated February 15, 2008, which is claimed to be the equivalent of an arrest warrant.4 Dkt. No. 23.

C. Summary of Investigations

Included in the record now before the court are reports of investigations conducted by both the BiH authorities and representatives of the United States Department of Homeland Security concerning the accusations against Mujagic. The results of an investigation by BiH authorities are reported in the extradition request. An independent investigation was conducted by Ingolf C. Hack, a special agent employed by the United States Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), to determine whether probable cause exists to support the charges against Mujagic. The results of Special Agent Hack's investigation are recounted in the extradition request, Extradition Request at P23–26, and separately in his affidavit dated August 20, 2012, and received as part of Government's Exhibit No. 1 during the recent hearing.5

II. PROCEDURAL HISTORYA. Formal Request for Extradition

On May 24, 2012, the BiH Ministry of Justice presented a formal request to the United States for the extradition of Mujagic pursuant to a treaty between the United States and the Kingdom of Servia for the Mutual Extradition of Fugitives from Justice, signed in October 1901, and entered into force on July 12, 1902 (1902 Treaty”).6 Extradition Request at P2–5.

B. Proceedings in This Court

On November 27, 2012, the United States filed a complaint with this court initiating proceedings pursuant to 18 U.S.C. § 3184 in connection with BiH's request for the extradition of Mujagic. Dkt. No. 1. Accompanying that complaint were a legal memorandum, the formal documents submitted in support of that request, and various other relevant materials, including a copy of the 1902 Treaty. Dkt. Nos. 1, 2. At the United States government's request, following commencement of these proceedings, a warrant was issued for Mujagic's arrest. Dkt. No. 3.

Mujagic was arrested in Utica, New York, and brought before the court on November 28, 2012, at which time he was advised of his rights and the process that would be followed to address BiH's request for extradition, and was assigned counsel. A hearing was subsequently conducted on December 6, 2012, to address Mujagic's request for release on conditions, pending an extradition hearing. Mujagic's request for release was denied by written order issued on December 6, 2012, incorporating by reference a bench decision issued on that date detailing the court's rationale for denying his request. Dkt. No. 13.

Following the receipt of Mujagic's memorandum in opposition to extradition, Dkt. No. 14, a reply memorandum and a supplemental submission from the United States government, Dkt. Nos. 16, 19, I conducted an extradition hearing on February 7, 2013. At the close of that hearing, decision was reserved, and the parties were advised that the court would issue a written decision addressing the government's application and, if appropriate, certify Mujagic's extraditability to the Department of State.

III. DISCUSSIONA. Legal Standard Governing Extradition

1. Overview

“The power to extradite derives from the President's power to conduct foreign affairs.” Martin v. Warden, Atlanta Penitentiary, 993 F.2d 824, 828 (11th Cir.1993) (citing, inter alia,U.S. Const. art. II § 2, cl. 2). Because a request by a foreign government for extradition presents a matter of executive branch concern, it is the Secretary of State who possesses the final authority for determining whether a fugitive should be surrendered to a requesting country. 18 U.S.C. § 3186; see United States v. Kin–Hong, 110...

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